The Volokh Conspiracy
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How America's Growing Diversity Weakens the Case for Racial Preferences in Education
Affirmative action becomes harder to defend when it entails discrimination against a variety of racial and ethnic minority groups.
The Supreme Court will soon issue its decisions in cases challenging the legality of racial preferences in admission at Harvard and the University of North Carolina. Most likely, the justices will rule that such policies are either categorically illegal or at least subject to much tighter judicial scrutiny than imposed by previous precedents. But, even aside from legal considerations, there is a different factor that has weakened the case for affirmative action preferences over the last several decades. Ironically, that factor is America's growing racial and ethnic diversity.
There is a simple standard rationale for affirmative action, dating back to its origins in the 1960s: America has a long history of horrific discrimination against some of its minority groups, especially blacks and Native Americans. If not for that history, those groups would be better off than they are now. Whites, by contrast, have often benefited from that discrimination (call it "white privilege," if you will). Thus, justice requires some form of compensation to the groups that have been wronged, at the expense of those that have unjustly benefited. Various types of carefully targeted racial preferences can help provide that compensation, and enable us to achieve a more just society.
This rationale is far from air-tight. Among other weaknesses, it is wrong to assume that most whites are beneficiaries of slavery, Jim Crow, and other historical wrongs. Many were actually harmed by it (albeit, less so than blacks, of course). Some of the white victims of affirmative action policies are even members of groups that themselves faced extensive discrimination at various times. Jews are an obvious example, given the once- widespread discrimination against Jewish students at many elite educational institutions.
Still, the traditional rationale for affirmative action is compelling in some ways. Most notably, it is undeniably true that slavery, segregation, and other forms of state-sponsored discrimination inflicted terrible harm on black Americans, and some other groups. Absent that history, we would likely have fewer racial conflicts and less racial inequality today.
But, as conservative political commentator Christopher Caldwell explains in a recent New York Times article, the traditional rationale has been weakened by America's increasing racial and ethnic diversity, most notably the growing role of Asian-Americans in higher education:
Affirmative action is on a shaky footing not just because the composition of the [Supreme] court has changed but also because the composition of the country has changed. Demography has caused the moral ground to fall out from under the policy….
Affirmative action dates from executive orders issued by Presidents John F. Kennedy and Lyndon Johnson in the 1960s. The policy was meant to help Black people at a time when the country was effectively biracial, with white people outnumbering Black people by a ratio of about seven to one…..
[B]ecause white people constituted an overwhelming majority, the number of white applicants disadvantaged by affirmative action was relatively low… And advantages were being redistributed from descendants of the former oppressor race (white people) to descendants of the former oppressed race (Black people)….
That has changed. The arrival of large numbers of immigrants over the past half-century has upset the logic of affirmative action in several ways. For one thing, white Americans no longer dominate the educational system. (They make up only 22 percent of the Stanford class of 2026, for instance.) Early on, affirmative action was also extended to Latinos, whose numbers continue to grow. In addition, African and Caribbean immigrants and their children now account for more than 40 percent of the Black enrollment in the Ivy League, which risks crowding out the people that affirmative action was originally intended to help….
More than any other development, though, the enormous rise in Asian immigration since the Immigration and Nationality Act of 1965 has complicated the administration of affirmative action. The complication, simply put, is that Asian students, on average, have been considerably more qualified for college than students of other groups….
Students for Fair Admissions presents evidence (which Harvard disputes) that Asian enrollment stalled because Harvard tweaked its admissions system to keep Asian students out. Citing internal Harvard documents, Students for Fair Admissions argues that if Harvard pursued a neutral admissions policy focused on academics alone, its incoming classes might have been more than half Asian.
Harvard did a number of things with Asian applicants differently from other applicants…
When majorities discriminate against their own kind, as largely white universities did in the early days of affirmative action, it may not feel like a bad kind of discrimination…. But the biracial historical context that used to tug at consciences, pushing admissions officers (and the parents of rejected students) to a more indulgent understanding of affirmative action, is gone….
[T]he United States has become a multiracial country, and affirmative action has turned into a different kind of program. Building diverse student bodies now requires treating Asian overrepresentation as a problem to be solved. This means discriminating by race in a way that is radically more direct and intrusive.
As Asians have become increasingly prominent among the victims of affirmative action, it becomes more difficult to argue that the policy is just redistributing ill-gotten gains from a group that has benefited from oppression to those harmed by it. Asians themselves, of course, have a history of being victims of discrimination in the US, from racist immigration policy to Japanese internment, among many other examples.
The beneficiary class has also been expanded to include groups far removed from the horrific history of slavery, Jim Crow, and persecution of Native Americans. Many are post-1965 Hispanic, African, and Caribbean immigrants, or children thereof. These groups have surely suffered some prejudice and discrimination. But not on anything like the enormous scale of victims of slavery, Jim Crow, and the forcible displacement of Native Americans.
To the extent that the rationale for racial preferences has shifted from alleviating historical injustice to promoting "diversity," current policies have other flaws. I summarized some of them in a Boston Globe article about the Harvard-UNC cases:
The racial categories used by Harvard, UNC, and many other universities are remarkably crude. The "Hispanic" or "Latino" category lumps together such varied groups as Argentinians, Cubans, Mexicans, and Puerto Ricans. "Asian" encompasses more than half the world's population, including Chinese, Indians, and Japanese. Arabs, native-born white Protestants, and Swedish immigrants are all classified as "white." "African American" includes both native-born Black Americans and immigrants from Africa and the Caribbean. Such sweeping and arbitrary classifications amount to little more than crude racial stereotyping of a kind courts would reject in almost any other context. They certainly don't reflect any carefully nuanced assessment of different groups' distinct characteristics or potential contributions to educationally useful diversity.
Perhaps Harvard, UNC and other institutions could fix these problems by applying the "diversity" rationale in a more nuanced way. But I am skeptical that real-world government and educational bureaucracies are capable of doing so fairly and accurately. Moreover, it is dangerous to provide an open-ended rationale for a vast range of racial and ethnic preferences.
Alternatively, we can try to reinvigorate the compensatory justice rationale for affirmative action by confining it to American descendants of slaves (ADOS) and perhaps also some Native Americans, such as those living on reservations. This latter option might even potentially avoid the use of racial preferences, as such. But it has a variety of potential pitfalls of its own.
The problems Caldwell highlights are not as completely new as he suggests. The truth is that the US has never been a purely "biracial" country. Even before recent waves of Asian and Latino immigration, there were substantial populations of those groups - descendants of 19th and early-twentieth century immigrants and Hispanics living in territories the US acquired after the Mexican War. Native Americans have, of course, been present in large numbers since before the Founding. And, obviously, white Americans have long been divided into a wide range of ethnic and religious groups that make it hard to lump all of them into a single "privileged" class. But even if not completely new, the growing diversity of the last several decades has weakened the case for affirmative action programs and made it even harder than before to structure them in a way that is plausibly just.
I think the best way to address these problems is simply to bar racial and ethnic preferences in government and government-funded educational institutions. I advocate a similar hard line against forms of racial and ethnic discrimination supported by many on the political right (e.g. - racial profiling in law enforcement, and discrimination in immigration policy).
But those more supportive of affirmative action than I am should at least give careful consideration to the challenges created by an increasingly diverse society. When a policy originally intended to compensate blacks for a long history of oppression has gradually morphed into efforts to cap the number of Asian students at selective universities, something has gone badly wrong.
