Affirmative Action: Unequal Protection under Unequal Policies

(Courtesy of Matt H. Wade)

(Courtesy of Matt H. Wade)

Above the entrance to our Supreme Court are inscribed the words: “equal justice under law.” Yet are America’s students really equal before the affirmative action (AA) policies set in place at her public universities? The fact that five of nine Supreme Court justices have consistently voted against race-based AA programs suggests they are not. Concurring with the Court, eight states have already banned these programs with four more following suit. Society’s shift away from these policies calls for a serious discussion of the viability of race-neutral AA programs and, ultimately, a discussion of the drawbacks of those sensitive to race.

The 2003 ruling of Grutter v. Bollinger established that a race-based AA program is only constitutional after all “serious, good faith considerations of workable race-neutral alternatives” have been exhausted. A decade later, many admissions offices continue to write off race-neutral alternatives in their dogged pursuit of diversity. That America has neither made a serious nor a good faith effort to consider race-neutral policies demonstrates a blatant disregard of the 2003 ruling. In fact, America’s public universities have never implemented such policies, though they should.

We can begin by looking to the only country that offers a large-scale, race-neutral, class-based AA policy: Israel. In an article studying “The impact of Israel’s class-based affirmative action policy,” University of Chicago’s Ofer Malamud focuses on four selective Israeli universities with AA policies based on an applicant’s neighborhood and high school. The researchers called this a class-based approach as it more accurately reflected a student’s socioeconomic standing. After analyzing the academic outcomes of more than 500 students, the authors found that the race-neutral, socioeconomically disadvantaged admits did not fall behind: they had the same average GPA and graduation rate as their peers. This outcome is noteworthy since several studies suggest that race-based AA admits in the United States are actually falling behind their peers.

But even if class-based AA programs can ensure that more students succeed in America, can these programs achieve a diverse student body? Anthony Carnevale, Stephen Rose and Jeff Strohl, authors of the book The Future of Affirmative Action seem to think so. Their feature in the New York Times includes a graphic (see below) that illustrates racial diversity under alternative AA programs. Essentially, the authors posit that class-based AA programs can vastly increase economic diversity while maintaining broadly similar levels of racial diversity. The oft-overlooked insight the book offers is that the obstacles facing many racial minorities can be captured through quantitative, race-neutral variables: income, family wealth, high-school rank, etc. The end result is a significant solution that addresses both the large racial and economic gaps found in America’s higher education system.


To be sure, class-based programs do not fully acknowledge the role that race plays in American society. One white and one black student from similar families of the same income face different problems: in fact, the black student must do more to keep up, as social-science research makes clear. Black students face additional psychological and systemic hurdles that students of other races do not face. Of course, race matters. So in Fisher v. University of Texas, UT argued (as did Justice Sotomayor) that race-based AA policies are necessary to create a diverse student body. To an extent, this is a reasonable argument; race and diversity are important in our increasingly interconnected world. The problem with their argument—as it applies to college admissions—is that it implies that all black people or all white people view the world in a similar way. Not only does this demonstrate a shallow view of the students’ imagination, it demonstrates a shallow understanding of human complexity. Fundamentally, these policies fail because they are using race as the primary proxy for disadvantage, ignoring the many other factors that influence it. In fact, some black and Hispanic groups in America outperform some white and Asian groups. One-fourth of Nigerian-Americans, for example, have a graduate or professional degree, compared to only 11% of whites. Not all and not only blacks are disadvantaged. Perpetuating the mentality that a colorful lecture hall solves the racial gap in higher education is a dangerous oversimplification of the issue at hand.

In Justice Sotomayor’s dissent of Schuette v. Coalition to Defend AA, she wrote the “common-sense reality [is] that race-sensitive admission policies benefit minorities.” Given the viability of race-neutral alternatives, and persistence of economic disparities at America’s colleges, we see that current race-based programs are actually not so common sense. Nor, are they constitutional given the Grutter precedent. Then the best hope of salvaging any AA program—given its increasing unpopularity amongst the Supreme Court and the States—is to shift the focus away from race to socioeconomic standing. This is not by any means a compromise. An approach like Israel’s addresses racial diversity, while also acknowledging that other forms of diversity matter.

In his speech during the March on Washington, Martin Luther King Jr. dreamt his “four little children will one day live in a nation where they will be judged not by the color of their skin, but by the content of their character.” The Reverend told us America’s race problems are not so skin-deep. The race gaps at America’s universities should be no exception.

Evelyn Cai is a second year in the College majoring in Economics and Philosophy.