On October 15, the U.S. District Court in Boston will begin hearing a lawsuit alleging that Harvard University’s admissions policies unconstitutionally discriminate against Asian Americans. Students for Fair Admissions (SFFA), a coalition of several Asian-American groups headed by the conservative legal scholar and activist Edward Blum, contends that Harvard’s affirmative-action policies, by favoring black and Latino students, unfairly penalize better-qualified Asian Americans. The case is likely destined for the Supreme Court.
As Stuart Taylor Jr. explains in our pages this week, the group’s argument is virtually unassailable. A 2012 internal document analyzing admissions data over 10 years by Harvard’s Office of Institutional Research (OIR)—which SFFA obtained after a legal challenge—found that if students were admitted based on academic scores alone, on average less than 1 percent of Harvard’s entering freshman class would have been African American,and only 2.42 percent would have been Latino. Most of the rest would have been white (38.37 percent) and Asian(43.04 percent).
Like most of our elite institutions, Harvard considers nonacademic factors in its admissions decisions: extracurricular activities, athletic achievements, personal qualities, and so on. The OIR document found that factoring in these considerations helped black and Latino students, but not that much: Taking these nonacademic factors into account absent affirmative action, the average freshman class would have been 2.5 percent black and 4 percent Latino. But black and Latino students each make up around 14 percent of Harvard’s student population. Asian Americans make up around 22 percent, but SFFA argues persuasively that number would be far higher in the absence of racial preferences. Asian Americans’ academic scores are vastly better than those of any other group, and their extracurricular activities more or less match those of whites.
In its 1978 Bakke decision and 2003 Grutter decision, the Supreme Court allowed the legitimacy of the use of racial preferences in admissions decisions on the grounds that “diversity” is a compelling state interest. But Grutter also insisted, in a majority opinion written by Sandra Day O’Connor, that race-based admissions policies must not be permanent. There is no evidence that Harvard or any other elite institution has any plan to phase out its affirmative-action policies. These universities appear to be in open defiance of Grutter, and it is well within the realm of possibility that the new conservative majority on the Supreme Court would declare race-based admissions unconstitutional.
In the most important sense, that would be a sound and right outcome. Harvard’s defenders can dance around the question all they like, but the key fact is undeniable: Affording preferential treatment to those of one race necessarily penalizes others for their racial identities. It is fundamentally un-American.
And it hasn’t worked. Affirmative action began with the best of intentions, but it has not achieved anything resembling the racial parity and improved performance that were its goals. It has actually created new problems. The most obvious is that black and Latino students are frequently thought to have benefited from unfair preferential treatment, thus narrowing their employment opportunities. They often arrive on campus, moreover, ill-prepared to keep up with their white and Asian peers, resulting in struggling performance and understandable resentment.
If the Court does in due course prohibit universities from considering race in their admissions process, conservatives may rightly applaud the end of a disastrous practice. But it won’t be enough simply to applaud. A mandated end to affirmative action, whether an immediate one or, more likely, a court-ordered timetable for its disappearance, would almost certainly result in a steep drop in the number of Latinos and African Americans attending our elite institutions. Those who aren’t able to get into an Ivy League school won’t find it hard to attend another school. But the social upheaval brought about by the end of race-based admissions will want much more than facile satisfaction from conservatives.
One of the dire effects of universities’ use of racial preferences is that they encourage us all—university officials, policymakers, commentators, ordinary citizens—to ignore the underlying social problems that led universities to embrace affirmative action in the first place. Elite universities are eager to admit more African American and Latino students because they are eager to appear to be the progressive and forward-thinking institutions they claim to be, not because they care so deeply about the success of underprivileged and underperforming racial minorities.
The end of affirmative action—even assuming that universities continue their racial-preference policies in ways that are harder to trace—would afford Americans a once-in-an-era opportunity to address the gap between black and Latino performance and that of whites and Asians. That gap is wide and shows no sign of narrowing. In the math tests administered by the National Assessment of Educational Progress (NAEP), only 7 percent of black 12th-graders scored at or above the “proficient” level in 2015. That’s compared with 12 percent of Latinos, 32 percent of whites, and 47 percent of Asian Americans. This is not new, but it may be getting worse: From 2000 to 2015, the black-white gap in 12th-grade NAEP reading scores grew substantially.
Nor does income explain the difference. The available evidence shows that whites from lower income levels outperform African Americans from higher income levels in both reading and math. Claims by progressives that these problems are the results of curtailments in social welfare programs are unsupported by solid evidence.
What explains the difference is inferior educational opportunities at school and at home. It’s a sensitive subject, but elite liberal commentators and academics do underperforming minorities no favors by avoiding any mention of the cultural pathologies that keep many highly capable minority students from academic success. Thanks largely to the grievous dissolution of the two-parent family, a breakdown abetted by well-meaning state and federal welfare policies, too many black children show up for their first day of school at a major disadvantage.
Daniel Patrick Moynihan famously made this argument as the Johnson administration’s assistant secretary of labor. His 1965 report, The Negro Family: The Case for National Action, brought little but condemnation from the author’s fellow liberals. That was more than a half-century ago. One hopes against hope that what we’ve lost in broken lives and racial resentment, we’ve gained in honesty. For too long, attempts to bridge the achievement gap have focused on lowering academic standards for black students rather than on improving their educational opportunities. The Supreme Court may side with Harvard and enshrine the legitimacy of affirmative action forever. If it does not, racial-preference policies can no longer serve as an excuse to avoid making right an enduring national failure.