The issue of affirmative action in higher education has bedeviled courts, policy makers, and the public since its inception in the late 1960s because two seemingly irreconcilable aims are advanced. On one hand, most Americans of good will want universities to be racially and economically diverse, tapping into the talents of students of all racial and socioeconomic backgrounds. On the other hand, most Americans do not want an individual’s race to count in university admissions. Many Americans believe that the central lesson of the civil rights movement was that it is unfair to look at skin color in deciding who gets ahead.
On Oct. 31, the US Supreme Court will consider challenges to the use of racial preferences at Harvard and the University of North Carolina. In a society where race and class both matter, is there a better way forward?
For years, the Supreme Court has tried to split the difference on affirmative action, with moderate Republican members saving racial preferences by a single vote in 1978, 2003, and 2016. This time is likely to be different. Chief Justice John Roberts has long been a fierce opponent of racial preferences. In a 2007 school integration case, Roberts famously wrote, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” A conservative court that is willing to take the politically unpopular step of striking down Roe v. Wade will probably have little hesitation striking down racial preferences, where public opinion is clearly on its side.
Some progressives will see such a court decision as a major blow to civil rights. For them, it would be seen as part of an alarming and deeply painful pattern of betrayal of Black Americans in recent years, from the 2016 election of Donald Trump to the 2020 police murder of George Floyd. Broadly speaking, I’m sympathetic to that concern, and as an expert witness for the plaintiffs, Students for Fair Admissions, I testified that because racial diversity is essential on campus, it was appropriate to use race as a last resort if other means could not achieve sufficient diversity.
But having studied the issue for 30 years, it is clear that a new affirmative action based on economic disadvantage can produce robust levels of racial diversity — and much more socioeconomic diversity — than the current system.
The data from states where racial preferences have been banned (usually by voter referendum) are encouraging. A 2012 study found that 7 of 10 flagship universities — including the University of Florida, the University of Washington, and the University of Texas — were able to use a variety of class-based policies that maintained or increased both Black and Hispanic representation without racial preferences. The exceptions were University of California, Berkeley, University of California, Los Angeles, and the University of Michigan. Since then the University of Michigan reports that its underrepresented minority population as a whole has risen from 12.9 percent (before the ban on racial preferences) to 13.5 percent today. Berkeley and the UCLA both just admitted their most racially diverse classes in more than three decades.
In the Harvard litigation, the university’s attorney, Bill Lee, claimed that Harvard could not find alternative ways to produce racial diversity absent racial preferences, but in a revealing May 2022 interview, Lee seemed to predict that universities will do just that. He said: “The demographic face of the country is changing, and my prediction is that the academic world and educational institutions will continue to educate America as it is today. Whatever the Supreme Court says we need to do to achieve that goal, our job will be to find a way to do it.”
Simulations that my colleague, Duke economist Peter Arcidiacono, and I conducted in the litigation found that by eliminating unfair preferences for the wealthy and boosting the leg up Harvard provides for socioeconomically disadvantaged students of all races, Harvard could produce about as much racial diversity as it currently does.
Moreover, Harvard would have a lot more socioeconomic diversity than it currently does, more than tripling, for example, the number of first-generation college students. This would be a very positive development. Today, Harvard’s lack of economic diversity is simply breathtaking. If Black students, who represent 15 percent of the Harvard student body, were as underrepresented in the Harvard population as first-generation college students have been over the years, Black students would make up just 2.25 percent of the student body.
A new system of socioeconomic preferences would create an opportunity for working-class students who are now largely excluded from Harvard. The new system would cost Harvard more in financial aid than it currently provides, but even with the market’s slide, Harvard’s endowment stands at $51 billion. It can afford to open the doors a bit wider to create economic and racial diversity in a new and better way in the years to come.
Richard D. Kahlenberg is a researcher, writer and author of “The Remedy: Class, Race and Affirmative Action.”