Doomed to Disappoint Justice O'Connor

Affirmative action has done nothing positive for black education -- as anyone aware of black IQ scores would have expected. If your theory is wrong, your results will not be what you expected. And conventional theories of black underachievement should be judged by their fruit too. Their only fruit has been to degrade the education of white kids who are forced to share classrooms with unselected groups of blacks

Five years ago, Justice Sandra Day O'Connor saved affirmative action in public college admissions when she crafted the majority decision affirming the consideration of race in admissions by the University of Michigan's law school. While O'Connor found justifications for the (limited) consideration of race and ethnicity, she also spoke of the need for such consideration to stop at some point. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," she wrote.

The American Educational Research Association assembled a group of leading scholars Tuesday to consider the state of affirmative action. Officially they were looking at the state of the Bakke decision that first authorized affirmative action. But they kept returning to O'Connor's deadline and her prediction that in 25 years (20 years from today), diversity would be possible without affirmative action. The unanimous opinion: no chance in hell.

Scholars examined a range of demographic and educational data showing how little progress has been made in narrowing key gaps in the educational opportunities available to black and Latino students. Given how slowly American education changes, they said, the idea that the need for affirmative action will disappear in 20 years is almost impossible to imagine. A subtext for their discussion was the reality that some states have shown less patience for affirmative action than did Justice O'Connor and have gone ahead and banned affirmative action - and more states are expected to follow suit this year.

While much of the panel discussion focused on inequality in American society, another group of institutions was also criticized for decisions that - without affirmative action - hinder the enrollment of minority students. Top colleges, the researchers said, are putting more emphasis on extremely high SAT scores, even though this means that the resulting pool is increasingly white and Asian.

In a paper called "Is 1500 the new 1280?" Catherine L. Horn, of the University of Houston, and John T. Yun, of the University of California at Santa Barbara, looked at the verbal SAT score averages of students at the 30 top colleges and universities (as determined by U.S. News & World Report). At all but four of these institutions, at least 30 percent of the freshman class had scored 700 or greater on the verbal SAT, and at half of these colleges, more than 50 percent of freshmen have such scores. In 1989, only one of the 30 colleges reported that more than 30 percent of the freshman class had a score of at least 700 on the verbal SAT. The shift is "extreme," Horn said, "suggesting a real shift in admissions toward very high-scoring individuals."

Raising the issue in this way is sensitive for supporters of affirmative action, even if they are skeptics of standardized testing. As Horn noted, two of the Supreme Court justices most critical of affirmative action, Clarence Thomas and Antonin Scalia, wrote a dissent in the Michigan law case in which they pointed out that the law school could easily have a diverse class without affirmative action. They said that a law school like Michigan's could set admissions policies that were relatively open or relatively elitist, and that the former would result in more diversity than the latter. If Michigan really wants diversity, the justices said, it could just lower standards.

"No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants," the justices wrote. "Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy."

Horn stressed that in questioning the elite colleges devotion to the highest possible SAT scores, she was not endorsing the Thomas-Scalia view. They are implying, she said, a strict dichotomy between academic rigor and diversity - a dichotomy she called "a false one."

When the elite colleges were admitting students with 600 verbal SAT scores, they were still plenty competitive, she said, and the increase wasn't necessitated by some terrible academic failings of those students or a national rise in scores. Rather she viewed it as part of a sense that higher numbers are always better (since U.S. News says so). If colleges stepped back a bit, she said, they would find they could attract very talented (and more diverse) students by focusing on admitting students who are very strong, but not necessarily part of the most elite (and less diverse) group out there. "What we're talking about is a reconceptualization of merit," she said.

The Demographic and Policy Picture

If colleges are at fault for SAT obsessions, the researchers said, there are plenty of other trends for which the culprit is the failure of American society to tackle educational and economic inequity. The audience heard a range of statistics - most of them "depressing," as one discussant said - that suggest that relatively few black and Latino students 20 years from now will end up in elite colleges without some kind of affirmative action.

For instance, in another paper, Yun cited findings that in California, high schools with large minority populations are 6.75 times more likely than other high schools to have unqualified teachers. By numerous measures, he said, minority students are more likely to attend schools with fewer offerings and to end up with a worse education. For O'Connor's vision to work in 20 years, minority and non-minority students would need to be "virtually indistinguishable" on a range of academic qualities, and the gaps in educational opportunity are too wide today for that to be viable, he said. He called it "very unlikely" that the high school student population 20 years from now would reflect O'Connor's wishes.

Donald E. Heller of Pennsylvania then outlined a series of gaps in high school graduation rates and college enrollment and graduation rates. At every stage along the way, he noted, schools and colleges lose black and Latino students. For example, 84 percent of white students who enroll in 9th grade are enrolled in 12th grade three falls later, while the figures are 61 percent for black students and 66 for Latino students. Those minority students are then less likely to enroll in college and to graduate from college.

Heller's paper focused on his attempts to identify states that have more success than others at closing the white-minority gaps, and he found that the states that do the best job at this are generally states without many minority students period. The odds of achieving O'Connor's goals in 20 years? "Slim," Heller said.

The Research Agenda

Gary Orfield of the University of California at Los Angeles agreed. "These problems are not going to be solved" in 20 years, he said. Part of the problem, Orfield said, is that too many people assume that there has been steady progress on educational equity. In fact, he said that while some figures for individual students have improved, there have in fact been two distinct periods since the civil rights movement. In the 1960s and much of the 1970s, the government was creating new programs to promote equity, adding substantially to the budgets of schools and colleges, and demanding evidence that states were educating their minority students.

Much of that stopped in the Reagan administration, he said, and has never really been replaced. Lacking some sort of sustained movement, he said, "nothing suggests we will meet Justice O'Connor's prediction. I think these trends suggest it will get worse."

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How Mismatches Devastate Minority Students

I have no doubt that those who originally conceived of race-based admissions policies -- nearly forty years ago -- were acting in good faith. By lowering admissions standards for African-American and Hispanic students at selective law schools, they hoped to increase the number of minority students on campus and ultimately to promote minority integration into both the legal profession and mainstream society. Similarly, however, I have no doubt of the good faith of those who opposed the policies. Indeed, their warnings that academic double standards cannot solve the nation's problems and may well exacerbate them seem especially prescient in light of recent research.

The real conflict over race-based admissions policies has not been about good or bad faith or about whether we should aspire to be a society in which members of racial minorities are fully integrated into the mainstream. There is no question we should. The conflict is about whether racial discrimination -- something that nearly all Americans abhor -- is an appropriate tool to achieve that end. Put starkly: Should the principle of non-discrimination be temporarily sacrificed in the hope that such a sacrifice will, in the long run, help us become the society of equal opportunity that we all aspire to?

Justice Stanley Mosk warned of the risks associated with such temporary compromises with principle over thirty years ago, when, writing for the California Supreme Court in Bakke v. UC Regents (1976), he held racially discriminatory admissions policies to be unconstitutional:

To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.

Mosk would probably laugh to hear his view characterized as "conservative" today; far more frequently he was accused of the opposite tendency. But whatever his political persuasion, Mosk had been a staunch ally of the civil rights movement from its beginning. Far from seeing a contradiction between his support for the civil rights movement and his opposition to the "minority friendly" race-based admissions policies in Bakke, he viewed them as one and the same. His opposition to race discrimination was a matter of principle. And he was unwilling to sacrifice that principle for the "dubious" practical gains promised by preference supporters.

Mosk's vision of civil rights did not prevail. His opinion in Bakke was superseded by the U.S. Supreme Court's fractured decision in Regents of the University of California v. Bakke (1978) and again by the just-as-fractured decision in Grutter v. Bollinger (2003) twenty-five years later. Despite Mosk's warning, race-based admissions policies mushroomed on college and university campuses, and a thriving diversity bureaucracy was established to administer them.

If Mosk was right, the mistake will be difficult to correct at this late date. It isn't just the iron rule of bureaucracy at work today -- that first and foremost, bureaucracies work to preserve themselves. Many distinguished citizens -- university presidents, philanthropists, judges and legislators -- have built their reputations on their support for race-based admissions. Their jobs are not at stake, but their sense of accomplishment may be. Overcoming that will not be easy.

Much more here