Affirmative action, as we know it, is probably doomed.
When you ask top Obama administration officials and people in the federal court system about the issue, you often hear a version of that prediction.
Five of the Supreme Court’s nine justices have never voted in favor of a race-based affirmative action program. The court has ruled that such programs have the burden of first showing “that available, workable race-neutral alternatives do not suffice.”
The issue appears to be following a familiar path on the court of Chief Justice John G. Roberts Jr. On divisive social issues, the Roberts court first tends to issue narrow rulings, with the backing of both conservative and liberal justices, as my colleague Adam Liptak has noted. In later terms, the five conservative justices deliver a more sweeping decision, citing the earlier case as precedent. With affirmative action, last year’s case involving Texas could be the first stage.
Beyond the Supreme Court, eight states have banned race-based affirmative action, and four additional ones, including Ohio and Missouri, may consider bans soon.
Despite this reality, many supporters of affirmative action are in some version of denial. Top university officials say that the court hasn’t prohibited their approach yet and that they hope it never will. Few colleges or companies are trying innovative approaches.
Two new books aim to fill the void. They lay out detailed visions of an affirmative action that would combine racial and economic diversity – in contrast to the current version, which has done little to promote economic diversity. Above all, the books answer the common liberal concern that economic-based affirmative action is a bad substitute for race-based affirmative action.
“Race-based affirmative action is a blunt instrument that doesn’t help the vast majority of black and Latino kids,” says Sheryll Cashin, author of one of the new books, “Place, Not Race” (Beacon Press), as well as a Georgetown University law professor and a former clerk to Justice Thurgood Marshall, who served on the court from 1967 to 1991. “And ironically, it engenders resentments that make it harder to build multiracial alliances to build investment in education.”
Proponents of a new kind of affirmative action prefer an approach that focuses on wealth, neighborhood and family structure, as well as parents’ income, education and other factors. Doing so steers clear of the legal restrictions on racial classifications – and, in the minds of most Americans, is fair. Is an affluent teenager with a 1,300 SAT score really more accomplished than the valedictorian of a troubled high school with a 1,250? No.
The second new book – “The Future of Affirmative Action” – includes a detailed analysis of class-based systems, from Anthony Carnevale, Stephen Rose and Jeff Strohl. The bottom line is that they would vastly increase economic diversity while leaving broadly similar racial diversity.
Under some systems, particularly those that emphasize students’ high school rank, racial diversity would increase. Using high-school rank – as Texas has done – is so powerful because of today’s high levels of economic and racial segregation.
“Universities have long said, ‘We can get racial diversity only if we use race,’ ” said Richard Kahlenberg, the editor of the book, which the Century Foundation and the Lumina Foundation are publishing. “There are a number of ways to produce racial diversity without using race.”
But here’s the paradox for defenders of today’s affirmative action: Their best hope of salvaging some form of it is to make race secondary and class primary.
Justice Anthony M. Kennedy, the swing vote on the Supreme Court, has signaled some openness to letting institutions consider race, so long as race doesn’t dominate their decisions. And in today’s version of affirmative action, race dominates. The standard way that colleges judge any potential alternative is to ask whether it results in precisely the same amount of racial diversity, rather than acknowledging that other forms of diversity also matter.
An affirmative action based mostly on class, and using race in narrowly tailored ways, is one much more likely to win approval from Kennedy when the issue returns to the court.
The next move belongs to those who believe in affirmative action. They can continue to hope against hope that the status quo will somehow hold. Or they can begin to experiment – and maybe end up with a fairer system than the current one.