Last year, in anticipation of two Supreme Court cases challenging the use of race as a factor in college admissions, the New York Times ran a story on public opinion of affirmative action. The coauthors queried a dozen college students and were flabbergasted by the responses, though they shouldn’t have been.

“For those Americans who assume that college students today are left-wing activists who aren’t in touch with the real world, our latest focus group will be especially eye-opening,” the article began. “Rarely have we been as surprised by a focus group as when we asked this racially and socioeconomically diverse group of 12 students whether they supported affirmative action in college admissions. Just one person said yes.”

In reality, the views expressed by these young adults fairly reflect long-held public attitudes about racial preferences. In a 1977 Gallup poll, a majority of blacks expressed opposition to special treatment. In a 1997 New York Times/CBS News poll that asked how “equally qualified college applicants” should be treated by admissions officials, 69 percent of all respondents and 63 percent of blacks said that “race should not be a factor.” A 2001 Washington Post survey asked: “In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” Ninety-two percent of all respondents and 86 percent of blacks said that such decisions “should be based strictly on merit and qualifications other than race/ethnicity.”

A Pew Research Center poll from 2019 found that 73 percent of respondents, including 78 percent of whites, 65 percent of Hispanics, 62 percent of blacks, and 58 percent of Asians, say that “colleges should not consider race in admissions.” In 1996, voters in California, not only the most populous state but also one of the most racially and ethnically diverse, approved a ballot initiative that barred the use of race in admissions at public universities. Over the next quarter-century, eight other states adopted similar restrictions. And in 2020, Californians soundly rejected a ballot referendum that would have overturned the 1996 ban.

It’s true that some polls over the years have shown support for “affirmative action,” but this typically reflects artful wording of the question or not defining the term in any detail. In a 2013 New York Times survey, for example, 53 percent of respondents favored “affirmative action programs for minorities in college admissions and hiring,” but the story immediately added that “other surveys that frame the question in terms of giving minorities ‘preference’ find less support.” Which is to say that the more accurately you describe “affirmative action” as it is practiced, the worse it polls.

When it comes to skepticism of affirmative-action policies, the issue isn’t whether today’s college students are “left-wing activists who aren’t in touch with the real world” but rather whether that description better applies to New York Times journalists and other liberal elites. If, as many who follow this issue expect, the Supreme Court sides with the plaintiffs in Students for Fair Admissions (SFFA) v. Harvard and the companion case, SFFA v. University of North Carolina, it will not only strike a blow for constitutional color blindness but also align with public opinion as expressed in polling and at the ballot box. As important, the High Court has an opportunity to correct judicial and administrative-state distortions of antidiscrimination law that date back more than a half-century and do much to fuel racial division.

The policies that would later morph into racial preferences got their start as efforts to secure equal opportunity for individuals, regardless of race. That was the intent of the Civil Rights Act of 1964 shepherded through Congress by Senator Hubert Humphrey and signed into law by President Lyndon Johnson. But it’s worth noting that racial attitudes in the U.S. had been moving in a more enlightened direction long before the landmark federal legislation finally passed. In 1944, for example, just four out of ten whites said that job opportunities should not be restricted by race. By 1963, five out of six whites had come around to that view. Similarly, wrote Abigail and Stephan Thernstrom in their 1997 book, America in Black and White, white support for school integration, desegregated public transportation, and residential racial integration grew by 80 percent or more over the same period.

Even in the South, where racially tolerant views were much rarer, attitudes were moving in the same direction. Between the early 1940s and early 1960s, acceptance of school integration among white Southerners grew from 2 percent to 31 percent, and support for neighborhood integration rose from 12 percent to 51 percent. “It has sometimes been suggested that federal civil rights legislation in the 1960s was responsible for the huge shift of white racial attitudes, but that puts the cart before the horse,” the Thernstroms noted. “Deep attitudinal changes created the political pressures responsible for the enactment of the new law.”

Still, support for the equal treatment of blacks isn’t the same thing as support for racial quotas, statistical parity, or double standards, and lawmakers at the time made that clear. The floor manager of the Civil Rights Act in the House, Representative Emanuel Celler, said that the bill contained “no authorization” for mandating “racial balance in given schools.” Senator Humphrey echoed that sentiment with respect to the workplace, assuring colleagues that the legislation “does not require an employer to achieve any kind of racial balance in his workforce by giving preferential treatment to any individual or group.”

Hence, not only does the Civil Rights Act prohibit employment discrimination on the basis of race, color, religion, sex, or national origin; it also states clearly that nothing in the law requires an employer “to grant preferential treatment to any individual or group on account of any imbalance which may exist . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section or other area.” Notably, the act also allowed employers to use an “ability” test in hiring decisions, “provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.”

“The policies that would later morph into racial preferences got their start as efforts to secure equal opportunity.”

No matter. In the aftermath of the law’s passage, this plain language would be turned on its head or ignored altogether to justify racial balancing not only in the workplace but also in higher education. “Federal administrative agencies and the courts led the change from the prospective concept of individual equal opportunity to the retrospective concept of parity of group ‘representation,’ ” wrote Thomas Sowell in Civil Rights: Rhetoric or Reality?, his 1984 book marking the 20th anniversary of the law’s passage. “Though lacking in either legislative authorization or public support for numerical group preferences, administrative agencies of government were able to enforce such [affirmative-action] policies with the support of the federal courts in general and the U.S. Supreme Court in particular.”

In 1971, the Supreme Court held in Griggs v .Duke Power Company that employers could not test applicants for jobs or promotions—even if the tests were “neutral on their face, and even if neutral in terms of intent”—if it resulted in fewer opportunities for blacks. The case, brought by a group of black workers who were required to pass a high school equivalency exam to qualify for promotion, established the legal precedent for “disparate impact” lawsuits that present statistical disparities as prima facie evidence of racial discrimination. What began as a push for equal individual opportunities regardless of race became a push for equal group outcomes based on race.

Eight years later, the Court once again ignored the plain language of the Civil Rights Act and the stated intentions of the lawmakers who passed it. In their 1979 Weber v. Kaiser Aluminum decision, the justices held that a company could use racial quotas in hiring to correct imbalances in its workforce. In his majority opinion, Justice William Brennan rejected “a literal interpretation” of the act and based his decision instead on what he deemed the “spirit” of the law, which he said did not prevent “temporary, voluntary affirmative action undertaken to eliminate manifest racial imbalance in traditionally segregated job categories.”

Griggs and Weber are hardly the only Supreme Court rulings that elided the clear intent of the Civil Rights Act of 1964, but both became legal landmarks that would later be used by administrative agencies, the Justice Department, politicians, and lower courts to justify obvious violations of civil rights law by citing the need to remedy past discrimination against minorities or to promote racial and ethnic “diversity.”

The principle of constitutional color blindness has governed much of the Supreme Court’s decision-making since the 1954 Brown v. Board of Education ruling, which outlawed segregation. As the legal scholars John Yoo and Wen Fa noted in a recent essay for The New Criterion, since Brown, the Court has banned consideration of race in everything from child custody to government hiring to federal contracting. In 2007, the justices ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the use of racial classifications by school officials in the K–12 admissions process was prohibited. “The campaign against racial discrimination began with schools in Brown and has now come full circle,” observe Yoo and Fa. “But a single exception to the Constitution’s colorblindness principle remains.”

In a seminal 1978 case, Regents of the University of California v. Bakke, the Court barred the use of numerical racial quotas but said that race could still be used as a factor in college admissions—so long as it wasn’t the decisive factor and so long as the objective was to promote student diversity. The Court reaffirmed that holding in 2003 in Grutter v. Bollinger and again in 2016 in Fisher v. University of Texas. Harvard and the University of North Carolina are now hoping that the justices will let them continue using racial double standards in determining which applicants to admit, but with a 6–3 conservative majority now on the Court, history is less likely to repeat itself.

Whether Harvard University (above) practices discrimination is barely even disputed in the case before the Supreme Court. (JONATHAN WIGGS/THE BOSTON GLOBE/GETTY IMAGES)

Under the Constitution, public institutions such as UNC are barred from considering race in admissions decisions. And under the Civil Rights Act, any institution that receives federal funds—which includes UNC, Harvard, and nearly all U.S. colleges and universities—is prohibited from engaging in racial discrimination. Whether Harvard and UNC practice discrimination is barely even disputed in the two lawsuits. Both schools have admitted in briefs that race and ethnicity are being used as a “plus factor” for applicants from certain racial and ethnic backgrounds but not others.

Duke economics professor Peter Arcidiacono, who authored an expert report on behalf of the plaintiffs in the cases, has demonstrated empirically that an applicant to Harvard with typical credentials has a 25 percent chance of admission if he is Asian. If you leave the credentials the same and change his race to black, his likelihood of admission skyrockets to 95 percent. For out-of-state applicants to UNC, racial gaps in the chances of admission are even wider. Notwithstanding past warnings from the Supreme Court, these schools are obviously using race as a large and decisive factor. The only question is whether the justices will end the charade or let the discrimination continue while selective colleges and universities pursue indefinitely what U.S. Solicitor General Elizabeth Prelogar described in oral arguments as their “diversity goals.”

It’s not difficult to understand why the Harvards and UNCs of academia favor racial discrimination in admissions. These policies help elite schools protect their brand, which is enhanced by showcasing a diverse student body, regardless of how that diversity is achieved. These institutions want a campus that “looks like America,” even if it means that they must consciously admit students more likely to struggle and less likely to graduate.

During oral arguments in the 2003 Grutter case, which concerned affirmative action at the highly selective University of Michigan Law School, Justice Antonin Scalia told lawyers defending the school’s racially discriminatory admissions policies that they couldn’t have it both ways. “I find it hard to take seriously the state of Michigan’s contention that racial diversity is a compelling state interest—compelling enough to warrant ignoring the Constitution’s prohibition of distribution on the basis of race,” Scalia said. “The problem is a problem of Michigan’s own creation. That is to say, it has decided to create an elite law school . . . [and] it’s done this by taking only the best students with the best grades and the best SATs or LSATs, knowing that the result of this will be to exclude to a large degree minorities.”

Scalia said that there was nothing wrong with Michigan wanting to be a top-ranked law school, but that trade-offs were involved if it also wanted to prioritize enrolling some predetermined percentage of underrepresented minorities for aesthetic purposes. “If [racial diversity] is indeed a significant compelling state interest, why don’t you lower your standards?” he asked. “You don’t have to be the great college you are. You can be a lesser college if that value is important enough to you.”

Some five decades into this affirmative-action experiment, it’s clear that schools are violating the plain language of both the Constitution and federal civil rights statutes. It’s clear that they are abusing the narrow window, first cracked open to them in Bakke, to use race as a small and nondeterminative factor in admissions. And it’s clear that group preferences cannot be reconciled with the imperative to treat all individuals equally. What’s also clear is that racial preferences are not helping the intended beneficiaries.

One of the most devastating consequences of affirmative action in higher education has been the systematic mismatching of students and schools. Smart students who would be on the dean’s list at a less selective institution have been funneled into more selective schools for purposes of window dressing. To meet diversity goals, smart and capable black students have been admitted to colleges with academic credentials far below those of the average student at the same school. Subsequently, these black students have struggled academically, dropped out at higher rates, or been forced to switch to easier majors.

Duke’s Arcidiacono, along with two colleagues, published an academic paper in 2012 on how racial preferences affect the number of black science and economics majors at elite universities. They discovered that among incoming freshmen at Duke who reported a major, more than 76 percent of black males intended to major in economics or one of the hard sciences—a higher percentage than among white males. Yet only 35 percent of black males went on to obtain a degree in one of these majors. The drop-off among their white peers was just 5 percentage points.

This racial gap in attrition rates, according to the study, could be entirely accounted for by looking at entry-level test scores. Those black students accepted to Duke with test scores similar to the average student at the school were no more likely to switch out of the more challenging economics and hard-science majors. But Duke also admits black students with academic credentials far below those of the average freshman, and it was this latter group that drove the racial gap in attrition rates.

Other studies have exposed the same phenomenon. When black students get admitted with lower qualifications than other students, they tend to do less well academically. It’s not a question of innate ability or of being “unqualified.” Rather, it’s a question of being matched properly with a school where the pace of teaching fits a student’s level of academic preparation. A study of black students at the Massachusetts Institute of Technology found that they had SAT math scores in the top 10 percent of all students nationwide but in the bottom 10 percent at MIT—and nearly 25 percent of them failed to graduate. Students who likely would have thrived at a less selective school wound up struggling at places like Duke and MIT, all in the name of diversity.

Defenders of affirmative action say that ending these policies will dramatically reduce college enrollment and campus diversity and be detrimental to expanding the black middle class. But after California banned race-conscious admissions by passing Proposition 209 in 1996, black college enrollment increased. It’s true that black enrollment declined at the UCLA and UC–Berkeley flagships, which are more selective, but as Richard Sander and Stuart Taylor, Jr. documented in their book Mismatch, those declines were offset by increased minority enrollment at other campuses in the University of California system.

Under race-neutral admissions policies, students were steered into schools that better matched their academic preparation. Subsequently, college graduation rates for minorities increased. “The number of blacks receiving bachelor degrees from UC schools rose from an average of 812 in 1998–2001 (the final cohorts entirely comprised of pre-209 entrants) to an average of 904 in 2004–2007 (the first cohorts entirely comprised of post-209 entrants),” Sander and Taylor wrote. For Hispanics, the increase was from 3,317 to 4,428.

“Under race-neutral policies, students were steered into schools that better matched their academic preparation.”

During the 1980s, the number of black students at Berkeley rose, but the number of black graduates declined. After affirmative action ended, black students who might have attended Berkeley and struggled instead went to UC– Irvine, UC–Riverside, or UC–Santa Barbara and graduated. According to Sander and Taylor, the number of UC black and Hispanic freshmen who went on to graduate in four years rose 55 percent; the number graduating with degrees in the more difficult fields of science, technology, math, and engineering rose by 51 percent; and the number who graduated with GPAs of 3.5 or higher rose by 63 percent. Such figures indicate that, on balance, racial double standards have served as a lag rather than a boon for minorities.

It’s well known that racial preferences in college admissions harm whites and Asians and foster racial resentment and campus unrest; it’s less well understood how they harm their intended beneficiaries as well. Policies intended to increase the number of black college graduates have, in practice, over the decades resulted in fewer black doctors, lawyers, architects, and other middle-class professionals than we would have expected to see, absent the policy.

Racial preferences also diminish individual achievement. They allow others to take credit for black accomplishments, and they falsely imply that black upward mobility can’t or won’t occur without officially sanctioned favoritism. When Elizabeth Warren ran for the Senate in 2012 and was accused of identifying as Native American to bolster her academic career, she became indignant. “I got what I got because of the work I’ve done,” she told the Boston Globe. Warren responded the way any self-respecting woman would respond to accusations that she was less qualified but hired nevertheless for diversity reasons. Liberal proponents of affirmative action tell blacks that there is no shame in racial favoritism—but who among us longs to be that diversity hire or token minority on campus?

When the New York Times asked the group of young people about affirmative action, concern about stigmatization was paramount. “By introducing affirmative action, that would further otherize that population” and “could potentially be harmful,” said a white woman. A Hispanic woman added that others would think that “minority groups . . . don’t deserve to be here.” A black woman said, “I think the biggest issue with affirmative action is that it implies that people of color wouldn’t be able to get that position on their own. What we need is maybe a blanket way of admitting students that doesn’t have anything to do with race.”

The Supreme Court’s job in the Harvard and University of North Carolina cases is to determine the constitutionality of race-conscious admissions. That shouldn’t be a hard call if the words of the Constitution and Civil Rights Act of 1964 mean what they say. Affirmative-action policies may have been well-intentioned, but intentions matter less than results. In practice, racial preferences have proved unpopular, polarizing—and ineffective, to boot. It’s time to end them.



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