Getting Beyond Race
Justice O'Connor ponders the twilight of affirmative action.
Monday, April 9, 2007 12:01 a.m. EDT
WASHINGTON--Sandra Day O'Connor had an enormous impact during her 24 years on the Supreme Court. In many cases she played the "swing justice" role on the court that Anthony Kennedy does today. On Friday she returned to Washington to revisit one such case, Grutter v. Bollinger, the 2003 case in which a 5-4 majority, led by Justice O'Connor, upheld the University of Michigan Law School's use of racial preferences to promote "diversity"--a justification first put forward by the late Justice Lewis Powell in the 1978 Bakke case.
Justice O'Connor spoke at a Washington and Lee University symposium honoring Powell, a good friend of hers who retired from the court in 1987. She explained how his reasoning in Bakke informed her own opinion in Grutter, but she also expanded on some of the cautionary language she had included in her 2003 opinion: "The court expects that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today."
In her speech on Friday, she said that preferences should be viewed as "a temporary bandage, rather than a permanent cure." She noted that the public has expressed opposition to preferences at the ballot box. Voters in California, Washington state and most recently Michigan have now banned their use in public universities and contracting. (Florida abolished them without a ballot initiative.) That means the original meaning of the 1964 Civil Rights Act--that racial discrimination of any kind is illegal--has won reaffirmation in three liberal states. Justice O'Connor noted that next year up to nine additional states will be voting on similar proposals--"as is their right and privilege to do so."
Justice O'Connor continued to defend her original position. She lamented statistics that showed that as a result of California's Proposition 209 (passed in 1996) only 2.2% of UCLA freshmen were black, and a fifth of those were on athletic scholarships. (California's overall population is 6.1% black.)
She seemed strangely unaware, however, of the growing evidence that racial preferences might have actually decreased the likelihood that blacks and Hispanics will graduate from college. Put differently, if the body of evidence is correct, the whole affirmative action enterprise has been deeply and tragically flawed from the beginning, failing to achieve its most basic aim: increasing the number of minority college graduates, doctors, lawyers and other professionals.
Other panelists at the Powell symposium discussed the work of UCLA law professor Richard Sander, which shows that minority law students in California who attend law schools at which their academic credentials do not match the credentials of other students are less likely to pass the bar exam than they would have been if they had attended less prestigious law schools where their academic credentials would have been closer to the norm. As a result, according to Mr. Sander, there are fewer minority lawyers than there would have been under colorblind admissions. Justice O'Connor did not attend the rest of the symposium and made no reference to the Sander study in her remarks.
Moreover, Justice O'Connor's comments about UCLA obscured an important and promising real story. While it's true that black and Hispanic enrollment at UCLA and Berkeley went down after Prop 209, these students simply didn't just vanish. The vast majority were admitted on the basis of their academic record to somewhat less highly ranked campuses of the prestigious 10-campus UC system, which caters only to the top one-eighth of California's high school graduates. In the immediate wake of Proposition 209, the number of minority students at some of the nonflagship campuses went up, not down.
This "cascading" effect has had real benefits in matching students with the campus where they are most likely to do well. Despite what affirmative action supporters often imply, academic ability matters. Although some students will outperform their entering credentials and some students will underperform theirs, most students will succeed in the range that their high school grades and SAT scores predict. Leapfrogging minority candidates into elite colleges where they often become frustrated and fail hurts them even more than the institutions. It creates the illusion that we are closing racial disparities in education when in fact we are not. While blacks and Hispanics now attend college at nearly the same rate as whites, only about 1 in 6 graduates.
Affirmative action often creates the illusion that black or other minority students cannot excel. At the University of California at San Diego, in the year before race-based preferences were abolished in 1997, only one black student had a freshman-year GPA of 3.5 or better. In other words, there was a single black honor student in a freshman class of 3,268. In contrast, 20% of the white students on campus had a 3.5 or better GPA.
There were lots of black students capable of doing honors work at UCSD. But such students were probably admitted to Harvard, Yale or Berkeley, where often they were not receiving an honor GPA. The end to racial preferences changed that. In 1999, 20% of black freshmen at UCSD boasted a GPA of 3.5 or better after their first year, almost equaling the 22% rate for whites after their first year. Similarly, failure rates for black students declined dramatically at UCSD immediately after the implementation of Proposition 209. Isn't that better for everyone in the long run?
University admissions officers don't think so. Ever since race-based admissions ended in California, they have tried to do end-runs around the ban and reinstate de facto preferences. For example, UCLA's new "holistic" approach to admissions, which purports to take into account an applicants' "whole person," including nonacademic achievements and obstacles they have overcome, was adopted in response to Proposition 209. The results have been dramatic. The number of black students admitted for the 2007-08 academic year has surged by 57%, to 3.4% of the overall student body.
But the increased numbers come at a cost. As Peter Schmidt reported in the Chronicle of Higher Education, the number of students from Asian backgrounds fell to 43.1% from 45.6%. Almost all of the drop came from two groups whose numbers on campus had been rapidly growing: Chinese-Americans and Vietnamese-Americans. "The overall number of minorities seems to have fallen using criteria that downplay academics and substitute factors designed to boost minority numbers," notes one UCLA professor.
Also, in a classic example of the law of unintended consequences, the efforts to factor in the disadvantages students have faced appear to have backfired. Mr. Schmidt notes "there was actually a decline in the number and share of admitted students who are the first in their families to attend college and coming from households that make less than $30,000 annually." Last year, UCLA admitted 24% of such students. This year, under its more "holistic" approach, the share of those with disadvantaged backgrounds who were accepted fell to 17%.
Racial preferences were intended to help disadvantaged minorities, but in reality they have been turned into a spoils system for the privileged. "Most go to children of powerful politicians, civil-rights activists, and other relatively well-off blacks and Hispanics," says Stuart Taylor of National Journal. "This does nothing for the people most in need of help, who lack the minimal qualifications to get into the game."
That's why efforts to improve K-12 education should be emphasized. Justice O'Connor ended her talk by explicitly recognizing that affirmative action, whether successful or not, isn't the real answer to the educational gap preventing minority students from succeeding as well as they might. "We have to make sure we are maximizing their educational potential when they are 8 rather than when they are 18," she said. "We are falling down in that area."
Indeed, many obstacles that have nothing to do with a need for more resources stand in the way of improving the educational performance of minorities. Those include burdensome teacher-certification programs, a failure to involve parents more in the education of their children, rules that hamper school principals, weak-kneed politicians and powerful teacher unions wedded to the status quo.
School choice and other dramatic efforts to improve the quality of K-12 education would do far more to improve the chances of minorities entering and finishing college than any racial set-asides. Indeed, school choice would represent genuine "affirmative action" in favor of millions of disadvantaged kids trapped in failing schools.
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