Why Affirmative Action Will (Probably) Survive

Marc Ambinder thinks that the era of affirmative action may be coming to an end.

[Justice Anthony Kennedy] endorses the idea that affirmative action can be used to achieve a diverse student body, so long as race is considered as one part among many others, and so long as applicants are considered individually. It is hard to imagine him not finding fault with the racially conscious 15 percent admissions process. For Kennedy, race-conscious policies are permissible (barely) if (and only if) diversity cannot be achieved any other way. Plainly, the University of Texas has found a way to achieve some measure of diversity without affirmative action before it takes race into account.

Perhaps Kennedy will try to salvage affirmative action, but it is hard to see the court’s conservatives allowing him to do so. They have their chance to end it, not mend it. Though John Roberts has said (and told Congress during his confirmation hearings) that he values precedent and wants the court’s decisions to be incremental rather than sweeping, it will be hard to resist the temptation to sweep away racial preferences.

It seems to me that he actually put his finger on why affirmative action won’t be banned wholesale. If Kennedy wants to preserve affirmative action, but can’t justify it in Texas, he can merely write an opinion stating that affirmative action is not permissible where the aims are being met by other means. That would abolish affirmative action in Texas, while continuing to allow sympathetic jurisdictions an opportunity to keep with the policy. To universalize from Texas’ experience, Kennedy must be judicially confident that any state could achieve the manner of diversity through a Top 10% policy like Texas has. This may be true, but it’s far from certain for a whole host of reasons.

It seems to me that Kennedy remains relatively sympathetic to affirmative action. If I’m wrong on that, then maybe it is dead in the water. But if I’m right, he can either uphold it in Texas (by declaring that the existing racial diversity is insufficient) or uphold it everywhere else (with the above argument).

Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.


  1. Trying to outlaw it will just relegate it to back alleys with coat hangers. Basically what the “holistic” approach is.

    • Tim is EXACTLY right. Faculty and administrations committed to AA for whatever reason will back door it in one way or another.

      And a top 10% policy like Texas’s strikes me as amply defensible. Perhaps not optimal but optimal isn’t the standard here.

      • To be clear (I might not have been), the top 10% isn’t what’s under attack here. No one is questioning the constitutionality of that (at least not before the court). Rather, the issue is that the AA is in addition to to the Top 10%. The Top 10% takes up 75-85% of their enrollment, and UTex wants to use AA for the remaining 15-25%.

    • I think this is true of smaller, private universities. Law schools, too. I’m not so sure about larger, public institutions and the basic admissions thereto.

      However, if they take more holistic approaches, I do think there is a greater likelihood of their getting it right in terms of looking at their actual background rather than a particular checkbox.

  2. AA had obvious merits in a culture where women and blacks were systematically excluded from various economic and academic opportunities. The logic back then was that prying open those otherwise closed doors would benefit individuals otherwise excluded from entry in the short term, and change dominant white male culture in the long term so that those doors remained open. So the question is has that long term goal been met? Will the doors of opportunity remain open to people of color and women if they are no longer pried open by the state?

    I don’t know how that question can be effectively answered. One way to find out, I suppose, is to repeal AA and let the doors swing as they will. On the other hand, there is probably an upper limit on how much state mandates can change cultural patterns within the dominant group. And if as the AA curve closes in on that limit the practice could become self-defeating because it fosters, rather than minimizes, racism and sexism out of resentment.

    I wonder if something milder, like a set of equal opportunity laws which would apply in cases of demonstrable discrimination, wouldn’t be more effective at keeping those doors open. Supposing that they’d swing closed without AA to act as a door stop, of course.

    • We still have a culture which a white guy with a felony conviction gets as many call backs to a job as a black man with no criminal record despite the same qualifications.


      Also, I’d mention, we had affirmative action for white people for about 300 years or so. No, we don’t spray water at black people sitting in lunch counters anymore, but it’s still buried in the system. See hiring trends for people with non-White names, acceptance stats for low scoring Whites, percentage of Blacks in jail versus Whites for crimes where equal percentages participate (therefor, numerically, more Whites than Blacks commit said crimes), etc. Kind of silly to say, “OK black people, hispanics, and others, you had 30 years, you should be caught up by now!”

      Also, there’s the simple fact that if you’re a white kid who didn’t get into college X, it’s just as likely that you didn’t get in because of a soccer player, a kid from another state, the child of a donor or alumni, as it was by a minority.

    • Still, I appreciate your comment. It was most excellent.

      One of the interesting developments when it comes to gender is that affirmative action is generally geared towards favoring boys. Or at least this has been covered as it pertains to private institutions. I’d be interested to know if there is any scale-thumbing at larger public ones – I wouldn’t be surprised either way. For women, I know that there are efforts to reach out to women when it comes to particular colleges and majors, but I don’t think it affects admissions criteria. Grad programs and law school may be different in either direction or both directions.

      I have stated before that I have a “soft opposition” to AA. There are some pretty strong arguments in both directions. I can say that I am most sympathetic towards it when it comes to African-Americans and Native Americans, but less sympathetic when it comes to recent immigrants and other groups. The main distinction being the extent to which the government explicitly and harshly played a hand in the current placement of the former group.

      There are some arguments for diversity as an enhancement of education. Abstractly, I am sympathetic. I do think that I benefited from the fact that I went to a very diverse college. I can also understand why smaller colleges and private colleges particularly would be enthusiastic about this (one of the main reasons for affirmative action for boys is the socially deleterious effects of girls outnumbering them by too large a margin). But I don’t think that crosses the “It’s okay to discriminate on the basis of race” threshold of necessity (I’m more sympathetic when it comes to, say, police departments on this score.)

      To get to the case before the court, I do think that this is constitutionally complicated. The Constitution says what it says. There is some bendability, and I do think some holistic approaches are appropriate (in fact, a more holistic approach with interviews and the like may require some degree of making sure that they aren’t inadvertently discriminating and taking measures to that effect), but I have questions about how the process is actually implemented.

      • …and I do think some holistic approaches are appropriate…, but I have questions about how the process is actually implemented.

        Some situations will be easier than others. I have trouble seeing a large public university conducting, for example, several thousand interviews as part of their admissions process.

  3. Affirmative Action is such a bastard child. So the Augusta, Georgia police department was told to desegregate its command structure. In response, they came up with an evaluation process which somehow never managed to find a qualified black patrolman to promote.

    So what the hell do you do about such things? You force them to promote someone. At which point, the usual suspects start up with their whinging and hand wringing about Gummint Excesses etc.

  4. W/R/T to this specific case, doesn’t the plaintiff have to demonstrate that she was specifically harmed by the policy to have standing in the case? I heard her interviewed on NPR and she said (paraphrased), “Black kids with worse scores and fewer extra curricular activities were admitted and I was not.” It seems she’d have to A) demonstrate this was true, B) demonstrate that this was true because of race and not other factors (scores and extra curriculars aren’t everything that is considered), and C) that she was somehow harmed by this.

    IANAL so hopefully someone who is can weigh in.

    • From Scotusblog:

      The argument began with Justices Ginsburg and Sotomayor suggesting the plaintiff lacked standing or the case had become moot because the student had graduated from another school and allegedly wouldn’t have been admitted even if race were not taken into account. Petitioner’s counsel argued that the denial of an equal opportunity at a chance of admission was injury in itself, and the student should be allowed to prove that she would have been admitted or suffered other damages. Justice Scalia chimed in to remark that the Court had not required proof that a contractor would have gotten a contract under a racially discriminatory contracting scheme, suggesting the same principle provided standing here.

      • Justice Schilling suggests that if plaintiff had earned better scores and grades, she wouldn’t have been a marginal admittee in the first place, and that spending time and energy continuing to litigate a case that will have no practical effect on her life does not suggest a lesson learned.

      • Thanks. That makes sense. It still seems important that she prove AA was indeed a factor in her denial.

  5. AA is very American in the sense that it has tried to make things fair by giving a handicap (like in golf) to anyone who might have been wronged by past transgressions. But, it is very unAmerican in the sense that it erodes the very basis of competition in the capitalist marketplace. And, of course, it results in many of us questioning the successes of minorities because we wonder if they might have been the beneficiaries of golf-like handicaps. There is also the problem of setting low standards for the groups that need to improve the most, thereby making it less likely that they will ever actually be able to compete in a true meritocracy. Did you know that in some states like Florida, minorities are actually placed in the public school gifted program with a standard that is 15 IQ points lower (1 standard deviation) than for non-minorities? When I weigh the pros and cons, I don’t like AA anymore. It might have served some purpose for a while, but it has outlived its usefulness and now has a negative impact on our societys’ ability to compete in the world marketplace!

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