Not Talking About Affirmative Action

by Michael Liss

I don't want to talk about affirmative action. It's a messy, horrible topic. Nypl.digitalcollections.510d47d9-c1d7-a3d9-e040-e00a18064a99.001.v

I just don't want to talk about it. But earlier this month, the New York Times reported on a new Jeff Sessions initiative to hire political appointees for the DOJ's Civil Rights Division for "investigations and possible litigation related to intentional race-based discrimination." By "intentional race-based discrimination," the AG means race-based discrimination against races other than African Americans or Latinos.

And I don't want to go there. Republicans, largely speaking off the record, see this as a win for Sessions personally, as it pleases Trump at a time where Trump-pleasing might be important for Sessions. And it's a win for the GOP, where affirmative action is broadly unpopular not only among party members, but also with more moderate suburban middle and upper middle class voters who approach the college application period with dread.

I'm still not going to going to be sucked in. Sessions' motives and whatever political calculations they reflect are irrelevant. The historical record on the systematic exclusion of minorities is an irrefutable disgrace, but, when it comes to remedies, particularly their legality, reasonable people can disagree. Either affirmative action is Constitutionally permissible, or it isn't, and the Supreme Court gets to make that decision. To be technical, there's no such thing as affirmative action—it's been banned by the Supreme Court since the Regents vs Bakke decision in 1978. What has been permitted, although narrowed by an increasingly conservative Court (see last year's 4-to-3 decision in Fisher v. University of Texas) is that universities can continue using race as one of multiple factors in their admissions decisions. This is what Sessions is targeting. He really isn't talking about pure merit—he's fine with the 21 other herbs and spices that are the alchemy of determining an incoming Freshman—but race will be out, and he's prepared to use the considerable power, and budget, of the DOJ to make sure it stays out.

What's next? It's not hard to predict that a lot of people who are enthusiastic about Sessions' goal will be end up being both disturbed and disappointed. Until the Supreme Court rules, he can't just snap his fingers and erase any and all considerations of race in the process. And, even if he were given an unlimited budget to pursue this, he wouldn't be able to investigate hundreds of colleges. The best he can do in the short term is to mount a few selective prosecutions of those he sees as excessively friendly to minority applications, and, by extension, hope to intimidate/influence the rest into altering their stated policies.

But here's his real problem (and it's the problem of applicants who expect to benefit from the new policy): The existence of a stated "pro-minority" process is easy to prove. Demonstrating the adverse impact of it on an individual basis as means of achieving redress might be much more difficult. To do that, to find out who really benefited and who was "wronged," he's going to need a lot of personal and granular data on every applicant, not just minorities, and then try to reverse engineer the admissions calculus, substituting his own views of who is worthy for the judgment of the school.

I suspect that this particular exercise will cause quite a bit of unhappiness. As every parent with a high-school-aged child knows, there are no completely objective admissions standards. There are grades, and test results, and every other resume-stuffer that parents can think about, and then there are the "hooks. Were Dad and Grandpa alumni? Is your family ready to endow a Chair? Can you bench press 370 while running a 4.5 in the 40? And when we get past those, did the school of your choice graduate out the entire tuba section of the marching band? Is it trying to develop a specialty major, just hire a few hot-shot professors, and need students to fill its classes? Even if you can't build a new wing on the Engineering Building, can Mom and Dad pay full freight, or close to it? This is data that colleges really do not want to give and many parents would be furious if disclosed. One of the first things they teach you in law school is don't ask a question that you don't already know the answer to. Sessions thinks the discussion is only going to be about race—but he's wrong, and once he (with the eventual support of the Supreme Court) wrings race out of it, it is going to end up being about hard-wired privilege.

That is the "disturbed" part. What about "disappointed"?

Basic math. Only a comparative few will actually benefit. There is no perfect algorithm to rank students, and there probably can never be, but it is incontrovertibly true that rejection rates at well-ranked "desirable" institutions are sky high. A dozen elite schools have an admit rate of less than 10%. Harvard, which is the subject of a lawsuit by Asian students that Sessions has decided to support, admitted 2038 last year out of an applicant pool of more than 39506. That's 37,468 "noes" and you can be fairly sure that many of those were qualified. The University of Michigan (to shop a tiny bit "down market") had 59,861 applicants, 43,987 rejections. Even if you let Richard Spencer run minority admissions for both schools, and lop off hundreds of minority acceptances, while some will benefit, the overwhelming majority of the rejected will remain both qualified, and rejected.

It is finally time for me to stop talking about affirmative action while not talking about affirmative action. It isn't because I have a cerebral answer to an extraordinarily complex and controversial subject. Rather, the arguments over preferential admissions to elite colleges obscure a far bigger issue: Compared to other countries, our K-12 education is doing less and less good for fewer and fewer people. Studies consistently show us declining on a variety of educational benchmarks relative to other industrialized nations.

This is also a disgrace, and while we see decay in metrics like knowledge and critical-thinking skills at both ends of the economic spectrum, it is particularly appalling for the economically disadvantaged. Children, regardless of their ethnic backgrounds, have to be able tap into a support pipeline that would lead them towards higher education or vocational training, good jobs, and a solid chance of success in adulthood. And, as important as it may be for minorities to get a fair shake at the Ivies, the stakes are far higher and the payoff far greater when you can help kids of every racial background who all have potential, but lack the resources.

Every year we find reasons not to act means losing some of that potential, perhaps forever. We know that the points of maximum leverage for children to learn occur far earlier than the moment you push the "submit" button on the Common Application. Learning is cumulative, and the sooner it begins, the better. The younger the brain, the more plastic it is. The more enriched the setting—with books instead of videogames, more complex language, and multiple stimuli—the more likely it is to have better outcomes. Ideally, this begins in the home, but early childhood education has proven returns.

Why don't we do it, if it's such low-lying fruit? Because it needs resources, both economic and political, and right now, too many people see profit in not doing it.The money part is obviously hard. No one likes paying taxes, or having "their" tax dollars spent anywhere else than on their own kids. There is an old joke that the fiercest school-budget hawks are the parents of children who just graduated high school.

The politics are harder–much harder. Conservatives see liberal bias in education everywhere. Teachers' unions are dependably Democratic, which makes assaults against them, and unfortunately the schools systems in which they teach, routine. The Charter School movement has its roots both as a legitimate attempt to innovate and as a labor strategy to weaken the influence of organizations like the NEA. The NEA, in turn, reflexively resists all charters, even when traditional public schools have fallen short. And Presidents appoint Education Secretaries who are openly hostile to public education and seek to divert funds to charter, private, and religious schools.

We also have to consider a strong streak of anti-intellectualism—one that is by no means new (Richard Hofstadter wrote about this more than a half-century ago), but has intensified as part of a populist surge that values "common sense" over things like book learning. The present, toxic variant combines contempt for humanities with a rejection of science. This may have superficial political appeal for some, but diminishes us all.

We need to get over this. The strongest argument I can make to both liberals and conservatives is to keep their eyes firmly fixed on end goals, using the best ideas of both sides. Read this piece by the very conservative Paul Beston in City Journal in support of a rigorous high school experience. Education has to be valued, regardless of what side of the political spectrum you are on. We should all want fewer un-and-undereducated children, if not as a matter of social justice, than for the most conservative of all reasons—fostering a generation of educated, self-supporting, taxpaying citizens able to adapt to the challenges of a constantly changing world.

That's the conversation we need. As I said, I don't want to talk about affirmative action.

For a fascinating discussion of the admissions process at elite schools, including a very unorthodox suggestion that will cause many parents to faint, see Schwartz, Barry, Why Selective Colleges Should Become Less Selective – and Get Better Students (December 2016). Capitalism & Society, Vol. 11, Issue 2, Article 3, 2016. Available at SSRN: