Affirmative Action as We Know it is Dead, But Should it Be?
November 4, 2022
The fairness and impact of affirmative action on employment and educational outcomes for racialized—but specifically Black and Latino—communities has long dominated headlines. It often seems like the mere mention of affirmative action, particularly in an American context, creates heated political and legal debates.
For nearly two decades, the legal precedent on affirmative action set in Grutter v. Bollinger, a University of Michigan case, has shaped college admissions policies. In this case, it was decided that universities can’t have numerical requirements for admissions. In the same breath, the court decided that the University of Michigan’s law school program had a more holistic process where they considered race among a variety of factors. This race conscious approach was deemed acceptable in the admissions process to achieve educational diversity.
With the court beginning its newest term, the lawsuit Students for Fair Admissions v. Harvard forces it to review the precedent set in Grutter v. Bollinger. As it stands, Harvard and the University of North Carolina use race as a factor during their admissions process. However, Students for Fair Admissions, a non-profit membership group largely made up of students and parents is arguing that affirmative action is discriminatory and should be unlawful. They further argue that Harvard is specifically discriminating against Asians.
With this review, it’s largely expected that the current precedent will be overturned because of the conservative judicial majority. Recognizing the fate of affirmative action in the U.S., I’ve chosen to focus this piece not on the case itself, but on the diverging perspectives in the affirmative action debate in relation to Black people. In doing this, I hope to truly understand what the potential impact might be. To understand the potential impact, I’ve always asked myself two questions: first, what will produce the best outcomes for Black people? And second, what is fairness in relation to access to education and employment outcomes? For years I thought I knew—I settled on the understanding that affirmative action increases upward mobility and Black socio-economic status. I still believe many of these things; yet I find myself questioning, is this the right approach? The literature in this area has left me torn.
Advocating for Affirmative Action
The concept of affirmative action stems from President Johnson’s 1965 executive order that changed hiring practices of all federal contractors. Since this order, these regulations have expanded to other states, and a significant portion of private employers have voluntarily enacted affirmative action hiring practices. The original order was focused on hiring practices of federal contractors, but colleges and universities throughout the U.S. have since adopted these practices.
Arguments for affirmative action tend to begin by framing it as a form of reparation to the Black community given the influence and historical backdrop of slavery and Jim Crow in American practices and laws. Advocates would argue that for centuries Black people were forced to serve white masters and work menial jobs for little to no pay. For centuries Black people were barred from accessing education. The effects of this created segregated institutions and neighbourhoods where, at large, a significant economic gap was created between Black and white people, largely engulfing Black people in poverty. So, the present conditions of Black people can be attributed to maltreatment actioned by the U.S. government and its white citizens.
To address this gap, affirmative action provides Black people with the access and supports required to level the playing field. We can call this argument corrective justice, where members of a deprived group are compensated for prior loss and gains unfairly achieved by others, as a result of prior government action and societal dynamics. The corrective justice approach introduces an ordering of moral concerns, meaning it places racial—or corrective—justice before race-blindness to understand how racism has impacted Black people. So, affirmative action is a moral and ethical method of redistributing justice to those that have been wronged, allowing a more equal reallocation of human capital throughout communities as opposed to centralized wealth accumulation among white people.
In many respects, this presents as a fair argument and request, particularly considering that in the past, white Americans significantly benefitted from a form affirmative action. An assessment of American history suggests that although affirmative action wasn’t formally created until 1965, through 1933 regulations such as the New Deal and the Federal Emergency Relief Administration, the Fair Labor Standards Act of 1938, and the Servicemen’s Readjustment Act of 1944, it can be argued that the spirit of affirmative action has existed for years, primarily benefitting white people. These regulations sought to maximize the exclusion of Black people whenever the nature of the law permitted it, and provided support such as money and skill training solely to white people. In particular, it helped war veterans to narrow the economic gap between veterans and those at home. What this means is that leaving Black Americans behind was intentional. Consider how any field that Blacks were overrepresented in, such as the maid and farming industries (which constituted more than 60 percent of the Black labour force in the 1930s, and nearly 75 percent of those who were employed in the South) were excluded from legislation that created modern unions, laws that set minimum wages and regulated the hours of work, and social security, until the 1950s. To make matters worse, they put people in power who were deeply racist and hostile towards Black upward mobility. The combination of these policies which used a nuanced form of corrective justice to benefit white people (specifically white veterans) and racially motivated exclusion was a government intervention that significantly advanced the interests of white people.
Beyond the corrective justice arguments, affirmative action advocates argue that it promotes equity in educational institutions and the labour market. It does this by holding space for Black people in higher learning institutions and organizations which for decades, have discriminated against Black people, not admitting them or even allowing them to apply. By effect, this increases educational diversity, by having a wide array of identities, experiences, and physical and psychological traits represented in the classroom. Advocates often point to the research that students will learn better where multiple vantage points are represented.
In some cases, in attaining educational diversity, transparency would suggest that students who may not have been accepted to these highly-selective institutions because of their lower test scores or GPAs in comparison to the average applicant, in fact, are admitted. But advocates would argue this is fair because these people only have lower test scores because the poor quality of K-12 education in lower-income and predominantly Black neighbourhoods, and the overall environment these students live in. These conditions are things that the student can’t control, but if left to pull themselves up, the likelihood of them escaping poverty is rather low. As such, in requiring institutions and organizations to hold space for, and increase the number of, Black people, the goal is to level the playing field by providing additional supports. Theoretically this would bring Black people to a similar point as their white counterparts. By levelling the playing field through affirmative action, the idea is that access to these institutions will better outcomes for employment because of increased education in the Black community, the institutional name on the degree (in some instances), and the exposure to institutional networks.
An argument from critics that has gained traction in recent years, which I discuss later in this piece, is one that addresses the mismatch hypothesis. The mismatch hypothesis suggests that racialized students are harmed by affirmative action policies, but Matthew Chingos‘ study at the University of California provides findings inconsistent with it. He found that graduation rates for underrepresented racialized students increased by approximately four percentage points between 1992-94, and 1995-97, before affirmative action was banned at this institution. If it wasn’t banned, he suggests that the trend would have continued. Chingos also addressed the point that less-selective universities produce better outcomes among minority students with weaker academic credentials. His research suggests that underrepresented racialized students, including those with less-than-stellar academic credentials are more likely to graduate from more selective institutions. Other researchers echo the point that beneficiaries of affirmative action are most likely to graduate by attending the most selective institution that would admit them. In this case, students who are well-prepared might be under-matched by going to a school that isn’t demanding enough, being less likely to graduate as a result. So disadvantaged students benefit more from attending a higher quality college or university more than their privileged and advantaged peers.
Critiques of Affirmative Action
Critics of affirmative action argue that the historical conditions that ground this debate in reparations are now irrelevant. What is relevant given today’s conditions, however, is fairness. On the grounds of fairness it’s argued that this practice has a number of consequences. The first consequence can be described as ‘racism against racism.’ Here, the idea is that in aiming to correct the nation’s wrongs from the past in relation to Black people, affirmative action has unfairly levied discrimination against other racialized communities, decreasing their access to prestigious institutions despite their excellent qualifications. In Students for Fair Admissions v. Harvard, one of the key arguments is that Harvard is discriminating against Asians. There is said to be a number of Asians with excellent qualifications who, without affirmative action presenting as a barrier, would be admitted. Instead, these Asian students are rejected because the university aims for educational diversity, purportedly holding spots for Black and Hispanic students with weaker applications or lower grades—students that wouldn’t have gotten in if race wasn’t a factor in the admissions process.
This argument isn’t new. In 1979, Antonin Scalia shared a similar perspective. “It is racist,” Scalia said. He went on to say that corrective justice is innately unconstitutional and wrong, and that affirmative action produces irregular or perverse results. He stated that affirmative action would “allow the son of a prosperous and well-educated Black doctor or lawyer” to be accepted, solely based on race, over the “son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead.” Critics suggest that this is the case because it’s based on concepts such as racial indebtedness and entitlement as opposed to individual qualifications and need. Though this argument is currently being used by another racialized group, such arguments have also been used by white Americans. Often, they’ll question why they shouldn’t be accepted to a prestigious institution over a racialized person if their grades are better and if their application is stronger.
The fairness of affirmative action is also addressed in terms of identity politics. Critics have argued that when it comes to educational diversity, why isn’t religion or class considered? They’ve argued that if affirmative action is indeed considering identity politics, why aren’t arguments being made to have other underrepresented ethnicities in athletics? Yet, racial equality in popular leagues such as the NBA or NFL isn’t discussed, primarily because it’s simply accepted that we can’t expect that every group is going to be equally good in everything they participate in.
Further consider along the lines of fairness how critics have also argued that that people admitted into highly specialized fields because of affirmative action may cause significant issues if they provide a product or service. Consider, for example, the use of affirmative action in the medical field. Critics have questioned if specialized doctors like cardiologists or brain surgeons who are racialized should have less stringent requirements to get into these positions. If so, the follow-up questions have been, would you rely on a doctor to perform a lifesaving surgery if you knew they were admitted into their medical program through affirmative action? Would your confidence in this person be the same as it would be in another doctor who met or surpassed the qualifications needed for this career? Many, based on the context of these questions, would answer no. And being so, critics would suggest that the good intention of this policy is likely to place people in bad positions to make difficult and what may be perceived as racist decisions between two doctors because of the colour of their skin.
When it comes to the mismatch hypothesis, critics heavily rely on this argument. Justice Clarence Thomas discussed this in his dissent in the Grutter case, suggesting that affirmative action puts unprepared students in institutions of higher education with the promise of a degree and all the opportunities that come with it. However, these students, particularly the ones admitted to highly-selective universities, are overmatched, realizing that once they enter into the program that they can’t succeed or keep up with the competition. This would suggest that it would have been better for these students to go to a school with lower standards for entry. It’s also argued that if the student knew they were being admitted under affirmative action, they may have chosen another institution. But because students are ‘misled,’ research indicates that after one’s ability is learned in their first year of college, the revelations of their strengths or weaknesses in relation to the program is strongly correlated to the decision to drop out, while others will switch majors.
Research in this area by Peter Aricidiacono and Michael Lovenheim discuss the effects of the mismatch hypothesis as well as what they call, the quality-fit trade-off. The quality-fit trade-off virtually addresses how highly-selective schools may not be a good fit for racialized students. According to Aricidiacono and Lovenheim, the extent of race-based preferences varies by ethnic group, with Black Americans seemingly being the largest beneficiaries of affirmative action in comparison to Hispanics and other underrepresented groups.
When it comes to the quality of the school, many prefer highly-selective schools where the standards for admission are higher, over less-selective schools. Often, part of what makes highly-selective schools distinct is that they present their material at a higher level, move at a faster pace, and assume that certain concepts and skills are already known. The result is students who are underprepared (possibly students who benefitted from affirmative action) become more likely to fall behind and drop out. This is because they were a bad match, or, overmatched. This is true of science and mathematics courses which build on past knowledge in ways other courses don’t. Here, Arcidiancono and Lovenheim argue that when students are overmatched as a result of affirmative action, it creates for worse outcomes, lowering the turn on the educational investment with lower pay and less opportunities as likely results.
Because there’s a relationship between the quality of the school and student preparedness, one of the consequences of racial preferences is that Black people are less prepared to enter highly-selective schools, resultantly falling behind their white counterparts who are better prepared during their K-12 years. They found that majors in STEM as well as economics have different grading distributions and are correlated with more study time. Being so, their research revealed that Black people were less likely to finish majors in STEM, but more likely to begin them. They were also more likely to transfer to the social sciences or humanities. These results were related to the substantial gaps in SAT scores between racialized students who start in STEM and finish in STEM, and those who start in STEM but finish outside of the major. This is shown at UC Berkeley where the probability of graduating with a science degree, dependent on starting in the sciences is 61 percent for non-racialized students, but only 31 percent for racialized students.
Discussion
The arguments and research for and against affirmative action both present strong and compelling evidence. So where does this leave us? For myself, it brings me back to the initial questions I asked in the beginning of this piece, the first being, what will produce the best outcomes for Black people? And the second being, what is fairness in relation to access to education and employment outcomes?
In reference to the first question, the relevant point of consideration is whether affirmative action improves outcomes for Black people. In understanding these arguments and studies, I believe perspective is first needed to ground this discussion. The history of science and statistics is not necessarily one that is favourable to racialized people. I say this to say, although I will indeed take these studies at face value, we must also consider the motivations and funders behind these studies to decide whether these are indeed universal facts, brought about by honest and neutral research, and not research with racially driven ideologies to rid or maintain affirmative action.
At first look, it might seem like the arguments on both sides are at odds; however, they actually have different focuses that don’t necessarily overlap. Advocates suggest that educational diversity improves learning outcomes for all students, and also that the beneficiaries of affirmative action are most likely to graduate by attending the most selective institution that would admit them. Advocates also point to research that seemingly contradicts the mismatch hypothesis, suggesting that students who are well-prepared might be under-matched by going to a school that is not demanding enough, and are less likely to graduate as a result. A final point advocates would argue is that affirmative action puts some in employment spaces that were previously inaccessible, thereby providing a more equal distribution of financial capital among racialized communities.
Although critics likewise focus on the mismatch hypothesis, they don’t address the point that well-prepared students might be under-matched by going to less-selective schools, subsequently being less likely to graduate. The focus of affirmative action critics here is on students who are underprepared going to highly-selective schools with higher demands and performing poorly or dropping out. It was also on students purportedly not understanding the rigors of studying for STEM programs, causing statistics to suggest that Black people were less likely to finish majors in STEM, but more likely to begin them. The overarching idea here is that Black and racialized students are overmatched, indicating going to less-selective schools will allow them to perform better.
What I see here is that both studies could be true. It may very well be the case that there are well-prepared students who are under-matched, going to schools that aren’t challenging enough and eventually dropping out. As such, affirmative action would benefit well-prepared students by extending opportunities to them which may not have been otherwise offered, and gives them a better chance to graduate. It could simultaneously be true that some under-prepared students are going to highly-selective institutions and failing, indicating that they would have had better outcomes at a less-selective institution. A number of things can be taken from these studies. First, there is an inconsistency or failure of how affirmative action is applied, likely failing to effectively understand which students will succeed. Second, the research doesn’t care to address the outcomes of those who are appropriately matched. Third, they ignore how under-prepared students may graduate despite performing poorly, but the mere mention of their attendance at a prestigious and highly-selective institution may improve their job prospects and earning potential. This is important because grade performance isn’t always an indication of workplace performance, but it certainly can be a strong indicator, particularly with highly specialized practices such as a heart surgeon. Overall, it would seem that affirmative action has mixed effects. Because it’s not working as intended, a reassessment is certainly required to alter how it impacts Black and racialized people; but total removal in my opinion is too strong of a move.
With this discussion, a key question is missing: why are Black students so under-prepared for highly-selective institutions, causing them to drop out, perform poorly, or switch from STEM to the humanities? The reality is that affirmative action acts as a Band-Aid. It’s used to avoid addressing the root causes of poor education which leads to weaker performances on standardized tests. It’s an extremely delayed intervention that springs into action when the gap between Black and white students is too large and noticeable to be meaningfully erased to level the playing field.
The question of fairness is more difficult for me to grapple with. On the one hand, affirmative action is largely benefiting Black people and reportedly allowing Black people to take up space, which doesn’t allow other racialized communities with the same or stronger test scores or applications to be accepted. It’s argued that it also allows rich Black children to be selected over others. For critics, this presents as an unjust and discriminatory act that disadvantages some as opposed to creating an equity approach. On the other hand, if affirmative action is indeed a corrective approach for racist legislation and the history of slavery, it could be considered fair that it’s using the context of the U.S. and its racist legacy to improve the economic outcomes for Black people.
All considered, it would seem that fairness in this regard would mean the removal of affirmative action, promoting an open competition that allows the best applicants to be accepted. To many, this solution is the right one. But the unintended effect will likely be the creation of heavy racially homogeneous environments in highly-selective schools that lack diversity—an approach I’m admittedly uncomfortable with. And I’m uncomfortable with this because students at these institutions often go on to gain respectable positions that come with power. As such, many Black people will no longer be represented in these positions, and many great leaders in powerful positions today may not be where they are had it not been for affirmative action. Here, I believe progressing throughout life without meaningful interactions with people who don’t look, think, or come from the same economic background as another will produce dangerous conditions.
I recognize that some would argue that maintaining affirmative action is disrespectful to Black people as it’s the maintenance of mediocrity as opposed to fairness, and an indication that Black people must be held to a lower standard because they are mediocre. But if the number of Black people in highly-selective institutions decreases significantly because affirmative action is removed, it points back to the much larger problem: we need to address the root causes that create the large gap between Black and white students and leads to Black people being underprepared. Although the state of affirmative action seems sealed, if race as a factor is removed, if anything should remain, it’s the consideration of economic status as a factor because inequality, regardless of race, reduces one’s opportunities and potential outcomes. The reality just happens to be that a significant proportion of Black and racialized people are engulfed in poverty. But meaningful steps to addressing the inequality gap for Black people doesn’t begin with affirmative action; it begins with an honest conversation of how to better prepare Black students during their K-12 years and addressing the social determinants to impact their education.
Black lives matter.
Interested in learning more? Check out these resources related to the subject:
Suggested Readings:
- The Anatomy of Racial Inequality by Glenn Loury
- Making Our Democracy Work: A Judges View by Stephen Breyer
Suggested Podcasts:
- Another Momentous Term for the Supreme Court – The New York Times (nytimes.com)
- Why the Supreme Court Might End Affirmative Action – The New York Times (nytimes.com)
- Bloggingheads.tv: DEI in the Orchestral World (Glenn Loury, John McWhorter, and Don Baton ) on Apple Podcasts
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