Let affirmative action die

Rather than come up with workarounds, maybe let in some low-income students if you care so much about diversity!

Next summer, the Supreme Court will almost certainly forbid universities from ever again using race as a factor in admissions decisions.

Without a doubt, this will cause a massive uproar from the elite American left-of-center and the Democratic Party, despite affirmative action having the rare trifecta of being grossly unpopular, immoral, and involving a great deal of dishonesty.

When affirmative action is dismantled, the Democratic Party should do nothing, and frontline members of the Democratic Party should go so far as to praise the conservative Supreme Court for its fine judgement.

I’d advise colleges to take the decision on the chin, and not look for workarounds to practice their racial discrimination. If they really want diversity, they should let in more low-income students, which will give them plenty of Latino and Black students anyway. And if we as a country really want elite colleges to do more good for low-income people, we should just tax them and give their money to institutions that actually serve low-income people.

Strikingly unpopular

Affirmative action is very unpopular. A few data points on this:

California, one of the most liberal states in the country, voted in 2020 to keep their ban on affirmative action in California public colleges and public hiring.

According to Blue Rose Research, which tries to accurately measure the popularity of various left-of-center priorities, affirmative action is the second most unpopular left-wing policy out of the 200 tested, second only to lowering the voting age to 16.

According to Pew, 74% of Americans think race or ethnicity should not be a factor in college admissions. This includes 59% of Black people, the group that benefits most from affirmative action.

Out of the total 26% of people who think race or ethnicity should be a factor, only 7% think it should be a major factor, and 19% think it should be a minor one. Harvard’s own lawyers acknowledge race was the decisive factor for 45% of Black and Latino students at their school. Does that sound major or minor?

There is almost no policy—actual or theoretical—in America as unpopular as a high degree of affirmative action. This isn’t some brave president going against the will of 60% of his people and enacting a courageous policy to save the nation. It’s 60 years of elites ignoring >90% of the population in order to ensure the racial diversity of the elite colleges only their rich kids will get into.

Race is a really really really really really major factor in admissions

As just mentioned, for 45% of Harvard’s Latino and Black students, race was definitive in their acceptance. If they were white, or worse, Asian, they would not have gotten in.

But honestly, I think this stat underplays the amount of discrimination going on, at Harvard and elsewhere.

At Harvard, here’s the relationship between academics and admit rate by race, using admissions data:

If you’re a promising high school senior in the 7th academic decile (calculated with test scores and grades), you’re 10 times more likely to get into Harvard if you’re Black compared to if you’re Asian.

Harvard explains this disparity by saying (page 64-65 of the transcript) that these statistics exclude ALDC, which is Athletes, Legacies, Dean’s list (children of fabulously wealthy parents who will donate millions), and Children of faculty. In other words, Harvard insists this chart is unfair because they don’t discriminate against Asians or whites—they just discriminate against the overwhelming majority of Asians or whites who are too poor, too unathletic, or too unconnected to have an in at Harvard.

They also say this chart is unfair because they don’t even use the academic index—but they do use test scores and grades, the only two components of the academic index.

UNC, on the other hand, is a much fairer school in the sense that if you’re in the 7th academic decile when applying there, you’ll only have a 9 times better chance if you’re Black vs if you’re Asian.

Race also plays a massive role in graduate school admissions. Here’s the situation if you’re an Asian who wants to be a doctor, but you have a MCAT of 25 and a GPA of 3.3 (the left group of bars): your chance of getting in to medical school is tiny, but it would be 9 times higher if you were black.

What are we doing here

The history of how affirmative action got this way is extremely weird, and I think it reveals a lack of intellectual coherence on the part of the colleges so desperately trying to keep the program alive. I think the real through line here is not any commitment to diversity as an idea, since there is very little economic or intellectual diversity at elite colleges. Their commitment is not to reparations either, since the majority of black students at these schools (especially once you ignore the athletes) are not descendants of victims of slavery/Jim Crow.

Rather, I think the through line here is that these schools are committed to having superficially diverse classes because they perceive it looks good to those that matter: other elites.

When John F. Kennedy created affirmative action by executive order, it was transparently a reparations program, as a way to apologize to Black people (and other discriminated-against populations) and make it up to them by taking affirmative steps to integrate them into the broader workforce and hopefully lift many of them out of poverty.

But over the years, the reparatory nature of affirmative action was lost, both in the courts and on the ground.

A few years after affirmative action was instituted by Kennedy, the reparatory nature of affirmative action had to be ended by the Civil Rights’ Movement’s success—through the Civil Rights Act of 1964—in making America legally colorblind. The Supreme Court confirmed as much in Bakke in 1978, ruling that universities couldn’t use quotas, but they could keep using racial preferences as long as there was a new goal: diversity.

It’s important that the Court ended the reparatory nature of affirmative action. Had they kept it, the colleges might be forced to let in mostly American descendants of slavery. Instead, as Lani Guinier and Henry Louis Gates Jr. noted in 2004 about their employer Harvard University, the decisive majority of Black students on campus were immigrants from Africa or the Caribbean or the children of such immigrants. Many of the rest were biracial.

As for the quota-forbidding part of Bakke, colleges just made their quotas wider instead of looking for a specific number. In their defense, when you’re doing any racial preferences at all, you’re going to decide on the race ratios you think are ideal and I’m not sure why those would change greatly from year to year, so I’m not sure what the Supreme Court expected. To be clear though, there’s not some years at Harvard where it’s 5% Black and other years where it’s 25% Black. They use racial preferences to make sure the number of Black students is roughly 10-20%. If they didn’t use racial preferences, maybe they’d see more variation from year to year, or maybe they wouldn’t, but everyone acknowledges they do use racial preferences, so I don’t see why the widening of the quotas is anything other than a loophole.

See the below chart for additional evidence from The Economist, comparing the Ivies, which have rough Asian quotas, to Caltech, which doesn’t practice affirmative action:

Plus, if affirmative action is defensible because of diversity, elite schools aren’t achieving it!

Below is the economic profile of Harvard, where 67% of students come from the top 20% of earning families.

If I were a judge, and a school told me that they had no choice but to institute racial preferences because diversity is such an important educational value, and then they took 53% of their students from the top 10%, I would think they were lying.

And once they added in that only 1.5% of their faculty identified as conservative, yet the reason they have racial preferences is because diversity is important for education, I would know for sure they were lying.

That’s all a very long-winded way of saying I really don’t know what we are doing anymore with racial preferences, and I really don’t know how we ended up with a system where the best school in the country has to declare that Asians are too boring for more of them to get in—even though their interview scores are the same on average—to satisfy the Supreme Court’s demands for a program created to rectify Jim Crow.

After affirmative action

Though it has received some attention, there is only limited awareness of what college admissions will look like after affirmative action.

One thing is always discussed in this context: Texas’ Top Ten Percent Rule. This rule states that the top 10% of all high school graduating classes must automatically gain admission to all public universities. Since the law’s passage in 1998, Texas has gotten bigger without UT Austin getting bigger fast enough, so now it’s that the top 6% of all high school classes automatically get in there.

The way that this program increases diversity is that it relies on de facto high school segregation. Because there are so many entirely Hispanic or entirely Black schools in Texas, this program increases the number of Hispanics and Blacks at UT Austin without ever having to use racial preferences.

But let’s be clear: this is really a word game. The switcheroo is that instead of being discriminated against because you’re Asian or white, you’re discriminated against because you live in a very Asian or very white area. This isn’t better, or really even different.

It’s also perverse. If you are a poor Black student living in a white area (let’s say you live in a guest house on a fancy property or a new triplex on a wealthy street), your benefit in getting to go to good neighborhood public schools is offset by the fact that it is much harder to automatically gain admission to UT Austin than if you just lived in a really Black area.

These programs don’t scale either. Are the Ivies supposed to do a valedictorian plan where valedictorians get in automatically? There’s tens of thousands of high schools, so even that wouldn’t be selective enough.

There is also some talk in the Court and elsewhere about what to do if applicants write about their experience as an underrepresented minority in their college essays. While I think it’s totally fine for students to write about anything that is meaningful to them, including race, I do think the idea of every Black and Latino student being forced to write about their race to get into college would be very bad, and the only way to avoid this is to really make sure—through audits or future lawsuits—that colleges stop using race as a factor in college admissions.

But if you’re Harvard, you’re not going to just sit back and watch your university become almost entirely Asian and white, although I don’t think that would be the worst thing in the world.¹ You're going to want to do something, and to me, I think that something should be letting in way more low-income students. If Harvard gave half the boost it gives recruited athletes to socioeconomically disadvantaged students, its percentage of underrepresented minorities (Native, Black, Latino) would rise from 28 to 30, and its percentage of first generation students would rise from 7 to 25.

More broadly I think the best way to make Harvard into an engine for social change would be to tax college endowments above a certain level with a highly progressive tax and use the revenues to support community colleges, vocational schools, and 4-year colleges that actually educate the lower and middle class. To my knowledge, the only person proposing this is Tom Cotton, but I do think there’s some good politics here if any other lawmaker wants to jump aboard.

But regardless of how we handle the post-affirmative action world, there is no need to mourn when it is gone. The high degree of affirmative action we have is extremely unpopular, extremely immoral, and there’s an easy way to keep racial diversity if schools are so inclined: take in more low-income kids.

1. A world in which elite universities were extremely racially unrepresentative doesn’t strike me as a bad one for anyone other than perhaps the students there. I think this world would force people to become more aware of what is already true: elite universities are extremely fancy places reserved for a tiny set of people who are really talented at age 17 (and that correlates with race and income!), and if you want a diverse writers’ room or corporate board or magazine staff or consulting team, looking only at the top universities is a horrible way to obtain one.