Posted on June 17, 2014

If Affirmative Action Is Doomed, What’s Next?

David Leonhardt, New York Times, June 17, 2014

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. Already, 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 in Chief Justice John Roberts’s court. 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 already 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 say 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, who is the 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. “And ironically it engenders resentments that make it harder to build multiracial alliances to build investment in education.”

The insight of both books is that the obstacles facing many black and Latino children can be captured through a set of variables that are, on the surface, race-neutral. A system based on these factors, rather than race per se, would be undeniably constitutional and more politically popular.

The most obvious of the factors is income–but it is not the most important. Supporters of today’s affirmative action often point out that a strictly income-based version of the program would produce much less racial diversity, and they’re right. Fewer than one-third of households making $40,000 a year or less are black or Latino, according to census data.

But income alone understates the challenges facing many minority children. Black and Latino students are more likely to live in poor neighborhoods than white and Asian students with similar incomes. Black and Latino families are also less wealthy than white and Asian families. And black children in particular are much more likely to be growing up without two parents in their home.

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. {snip}

The second new book–“The Future of Affirmative Action,” which comes out Tuesday–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.


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.


An affirmative action based mostly on class, and using race in narrowly tailored ways, is one much more likely to win approval from Justice Kennedy when the issue inevitably returns to the court.