As the Supreme Court considers the arguments it heard on Students for Fair Admissions, here are three observations — two obvious, the other perhaps less so.
Why the architecture of affirmative action was always destined to collapse
Second, this practice has apparently given a hostile court the excuse it wanted to end affirmative action as we know it. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Chief Justice John G. Roberts Jr. in 2007; he is now the leftward flank of the court’s conservative majority.
Third, no matter what you think of this court, we were probably going to eventually end up here. America’s decades-old racial settlement had many cracks, but it was a workable solution to real problems. However, it has gone on for far longer than could have been anticipated, a fact that came up repeatedly during Monday’s oral arguments, and time has deepened the early cracks into gaping fissures. Immigration and demographic change have made all those problems more difficult still, and under those pressures, the old compromises have simply become untenable.
One of my favorite statistics for shocking Washingtonians is to reveal that in 1960, more than 9 in 10 Americans accounted for in the census were White — and of the remainder, the overwhelming majority were Black, with the rest of the “non-White” population totaling less than 2 million. (This is slightly complicated by the fact that the census didn’t even try to tally Hispanics until 1970 — but it seems unlikely that they were as much as 5 percent of the population.)
Unsurprisingly, our civil rights architecture was primarily structured to equalize the relations between a Black minority that had suffered centuries of state-sponsored racial oppression and a majority group that had perpetuated that manifestly unjust system. The civil rights establishment ended up with a dual mandate to prevent discrimination while narrowing the lingering gaps that reflected past injustice.
Those goals were often in tension, the results awkwardly jury-rigged. The desire to rapidly equalize outcomes suggested quotas, a solution popular with some left-leaning institutions that wanted to bolster their legitimacy on racial issues. But this conflicted with another deeply held social value: that we treat individuals as individuals, not representatives of some racial category.
This tension was not intolerable; societies can handle a considerable gap between de facto and de jure, and we managed ours tolerably well, with recourse to euphemisms such as “diversity” rather than admitting the stark fact of racial balancing. The larger problem was that the United States didn’t stay one nation, Black and White. The 1965 immigration reform, passed just a year after the Civil Rights Act, eventually complicated the old accommodations to the point of collapse.
As legal scholar David Bernstein points out in “Classified: The Untold Story of Racial Classification in America,” “Experience around the world shows that affirmative action categories almost always expand rather than contract, as more and more groups lobby to get affirmative action preferences and then lobby to protect those preferences.” A system that drew its political support from our desire to eradicate Jim Crow ended up covering a number of protected classes, though along somewhat arbitrary lines that were driven as much by political maneuvering as by any rational criteria. This created various ad hoc absurdities — a Pakistani is “Asian,” but an Afghan born a few miles across the border might be coded “White”; the daughter of a Spanish doctor is Hispanic, eligible for various private and government-sponsored affirmative action programs, while the child of an Italian janitor, who might be visually indistinguishable from the doctor’s child, is presumably in no need of help.
The more immigrants who arrived, the more these complications multiplied, even among Black Americans. American descendants of enslaved people are our most disadvantaged citizens, with enduring gaps in education, income and wealth, but African immigrants are much better educated than average. The old system assumed a large White majority that was self-contained and thoroughly dominant; it was simply not built for a world where “biracial” was a meaningful category, or where some minority groups were more successful than the (rapidly shrinking) White majority.
In 1960, schools could have given underrepresented minorities a boost, allowed some minorities such as Asian Americans to be overrepresented, while retaining a representative White majority. But today, Harvard University’s own internal research has suggested that Asian Americans would make up 43 percent of an admitted class if only academics were considered. Allowing Asian numbers to grow in accordance with their academic overperformance, while keeping affirmative action in place, would presumably have left the White majority substantially underrepresented.
That might be morally justified on various grounds, but it is politically untenable and eventually those contradictions would have forced substantial reforms of our current system. A more liberal court might have kept things as they are for a few more years, but eventually it would have come up against the same problem.
In the name of making its elite institutions fully representative, America can ask some members of the White majority to step aside in favor of underrepresented minorities with lower grades and test scores. And in the name of procedural fairness, America can ask disappointed White applicants to suck it up when they were outcompeted for university places by overperforming minority groups. But America cannot ask both those things at once — not when the numbers get so big and the stakes so high.