By Richard Rothstein
The Supreme Court has nearly abolished the obligation of selective colleges and universities to give an advantage in admissions to African Americans, as a way to compensate for centuries of racially discriminatory public policy. According to the Court, such “affirmative action” violates the Constitution, which requires public universities to be “colorblind”—equally resistant to discriminating against African Americans as to favoring them to undo the effects of past discrimination.
The only race-conscious admissions programs the Court continues to permit is the pursuit of “diversity.” Universities may seek to ensure that their entering classes include a few violinists, jai-alai players, modern dancers, chess whizzes, computer nerds and, oh yes, some African Americans as well. This is a very small hoop through which admissions officers can jump.
In response, many liberals have attempted to develop a proxy for affirmative action—policy to increase the admission of African Americans by selecting characteristics that are not specifically black, but that in practice heavily favor blacks. The most common proxy is favoring the admission of low-income students of all races, or the admission of students of all races who live in low-income communities. As Justice Ruth Bader Ginsburg has observed, “only an ostrich” can pretend that such policy is colorblind, because everyone knows that its true purpose is to evade the Court’s prohibition of affirmative action for African Americans.
But so far, the subterfuge has worked. The academic top-tier public universities in Texas, California, and Florida have guaranteed admission to graduates with the best grade-point averages from each high school in their states. Because large numbers of African Americans in these states are trapped in segregated low-income neighborhoods, the top students from ghetto high schools are guaranteed university admission, even if their academic qualifications are weaker than those of students who are not guaranteed admission but who attend high schools in middle class communities. Some private colleges have also developed policies that favor low-income students and these, too, necessarily enroll a disproportionate number of African Americans.
The most articulate defense of this approach is a book published earlier this year by Sheryll Cashin, Place, Not Race. In a blog post here, and in a review in The American Prospect, I criticized it because a focus on low-income communities bypasses middle-class African Americans who are fully qualified for elite universities but who remain under-represented at those institutions from the continued effects of centuries of public policy, first to enslave and then to subjugate African Americans. In consequence, black families and their children suffer from compounded and inherited disadvantages that are unique, not like those of white or immigrant families who happen to be from lower social classes or who happen to live in low income neighborhoods.
Professor Cashin has now written a letter to The American Prospect, taking issue with my review. I replied, she responded to my reply, and I then responded to her. The full exchange is on the magazine’s website.
There is a sharp distinction between policies to enhance upward mobility for all children who are socio-economically disadvantaged, and policies (like affirmative action) to compensate for the nation’s relegation of African Americans to lower-caste status. It is desirable, and admirable, for selective colleges and universities to contribute to efforts to make the social class structure more fluid by recruiting socio-economically disadvantaged students, regardless of race. Seeking such students is a policy choice on the institutions’ part, and while admirable, there is no legal requirement that they pursue it.
Specific recruitment of African Americans, in contrast, should not be seen as a voluntary policy choice but rather as a Constitutional obligation to remedy past discrimination. That our reactionary Supreme Court has misinterpreted the Constitution to deny this obligation is no excuse for progressives to forget the distinction.
My magazine review of Place, Not Race described how federal housing policy in the mid-twentieth century explicitly forbad suburban developers from selling homes to African Americans, how black working-class families consequently did not acquire wealth from housing equity appreciation as did white working class families, and how, as a result, African American families who were denied the opportunity to move to the suburbs have been less able to afford to send their children, and their children’s children to college. Race-based affirmative action can help to remedy this result.
Professor Cashin’s letter proposes that recruitment of students from low-income communities could “help the vast majority of black and Latino children who currently suffer the disadvantages of segregation.” I reply that it is inappropriate to expect selective universities to help the vast majority of such children. We have an unfortunate tendency to place the burden of solving our social and economic inequalities too heavily on educational institutions, while ignoring social and economic policies that government should be taking to reduce inequality and enhance social mobility.
Attempting to help the vast majority of disadvantaged children by reforming the admissions policies of elite universities is of a kind with contemporary federal policy for K-12 education, which expects greater accountability for educators to close the academic achievement gap, without remedying the causes of low performance of disadvantaged children – parental unemployment and low wages, poor health care, unstable housing, inadequate early childhood literary experiences, residential segregation, and absence of high-quality after-school and summer experiences.
Our regular elementary and secondary schools should certainly try to do a better job of educating disadvantaged children. And selective colleges and universities should seek out and recruit academic high-performers from disadvantaged communities. But the chief responsibility for narrowing economic inequality and enhancing upward mobility lies elsewhere—as I write on the American Prospect website, the solution to inequality and blocked mobility is not affirmative action but progressive economic policy:
“a more redistributive tax system, higher minimum wages, support for collective bargaining, reducing the cost of higher education, refinance of sub-prime mortgages, labor market reform (like current campaigns against arbitrary and flexible part-time work schedules), legalization of ‘dreamers,’ expansion of Medicaid in states that have refused it, etc. Such policies will enable many more students from low-income neighborhoods to succeed in K-12 schools and then in post-secondary education and will make it more likely that in the next generation their own children will become competitive for the most selective colleges. Affirmative action cannot shoulder the entire burden of the fight against American inequality and blocked mobility.”
Sheryll Cashin’s attempt to find ways around the Supreme Court’s colorblindness is not objectionable. It is necessary. For the time being, the current Court majority defines the outlines of permissible policy. Rather, what is objectionable is accommodation to the Court majority without protest.
It is one thing to seek alternatives to race-based affirmative action that approximate affirmative action’s goals. It is quite another to defend such alternatives as the most desirable policy, to suggest (as Professor Cashin and her many allies do) that preferences for students from socio-economically disadvantaged families are superior to preferences for African Americans, and that, as I wrote in my response to Professor Cashin, if Justice John Roberts hadn’t given us colorblind policy restrictions, we should have invented them ourselves:
“We are, after all, possibly one Supreme Court vote away from a return to enforcing the intent of the 13th and 14th Amendments not only to abolish slavery but to abolish what an earlier and more faithful court majority called the ‘badges and incidents’ of slavery and of subordinate caste status, and their ongoing effects. The election of a Democratic president in 2016 and the retirement of a Republican justice will not, however, guarantee such a return. A new court majority will not proclaim loudly what liberals fear to whisper. If progressives follow Professor Cashin’s lead and now throw in the towel on race-based affirmative action, we can be assured that a better Supreme Court majority will not dare to correct them.”