Bayard Rustin, one of King’s lieutenants, described the problem in a 1987 article in The New Republic. “Any preferential approach postulated on racial, ethnic, religious, or sexual lines will only disrupt a multicultural society and lead to a backlash,” he wrote. By contrast, “special treatment can be provided to those who have been exploited or denied opportunities if solutions are predicated on class lines, precisely because all religious, ethnic, and racial groups have a depressed class who would benefit.”
Anger over racial preferences arose in the 1990s, and President Bill Clinton flirted with the idea of shifting the focus of affirmative action from race to class, suggesting, “I want to emphasize need-based programs where we can because they work better and have a bigger impact and generate broader support.” But civil-rights and women’s groups protested and Clinton backed off.
Opponents of affirmative action didn’t give up, however. Instead, they shifted their attention from legislation to court challenges and direct voter referenda, where in subsequent years they prevailed in repealing racial preferences in both blue and red states. Between 1996 and 2012, eight states, from California to Michigan and Nebraska, home to more than one-quarter of the U.S. population, banned racial preferences in admissions to public universities, often by voter referendum.
These states did not give up on diversity, but rather found new paths to achieve it. In a majority of the eight states states, universities instituted class-based admissions preferences, increased financial-aid budgets, and formed new partnerships with disadvantaged high schools. A number of universities, such as U.C. Berkeley and UCLA, dropped legacy preferences for the children of alumni, placed an increased emphasis on high-school class rank over test scores, and beefed up transfers from community colleges to four-year institutions. In a 2012 analysis of 10 leading public universities that created alternatives, my colleague Halley Potter and I found that seven were able to produce comparable or greater levels of African American and Latino representation without resorting to racial preferences. Of course, the black and Latino beneficiaries are much different under these programs—think the young Sonia Sotomayor or Michelle Obama, not Obama’s teenage daughters—which is, as a matter of basic fairness, as it should be.
Meanwhile, the courts have also been pushing universities away from racial preferences to alternatives like preferences for needy students. In 2013, the U.S. Supreme Court’s Fisher v. University of Texas decision placed on universities “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” And new lawsuits challenging affirmative-action policies at Harvard University and the University of North Carolina are beginning to make their way through the courts. The Harvard suit emphasizes a new wrinkle in the affirmative-action wars: Asian Americans, who themselves have been victims of discrimination throughout U.S. history, appear to be particularly disadvantaged by racial-preference policies.