Reporter's Notebook

The End of Affirmative Action?
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Readers debate the merits of affirmative action following the December 2015 oral arguments in Fisher v. University of Texas (which ended in a 4-3 ruling upholding AA in June 2016). Contribute your own views via

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The End of Affirmative Action? Nope. Ever?

Back in December, when the Supreme Court held oral arguments for Fisher v. University of Texas, we started a robust reader debate on affirmative action in Notes. (You can peruse it from the beginning here.) In a 4-3 decision this morning, the court upheld UT-Austin’s program for increasing student diversity partly based on race. The ruling is a “substantial defeat” for opponents of affirmative action, says Garrett Epps. On the deciding swing vote:

For the first time in his judicial career, Kennedy gave his approval to a race-based affirmative-action program. And he did so in an opinion that clearly reaffirmed the constitutional rationale for such programs first enunciated by Justice Lewis F. Powell Jr. in the 1978 case of Regents of University of California v. Bakke and reaffirmed by the court majority in the 2003 case of Grutter v. Bollinger.

Yet: “Kennedy was careful to clothe his opinion in narrow language that appeared to leave larger questions open. Thus, a nine-justice court (if such a unicorn is ever found in the wild) might one day reconsider the issue.” That would be just fine with this reader:

We still need affirmative action right now. BUT if we ever want to gain true equality, benefits based on race will have to go, just the same as racial degradation needs to go. Nobody can deny that someday soon affirmative action will be gone.

When would that be—by what metric? If you’re a backer of affirmative action and want to tackle that question, please drop us a note. This reader suspects the policy will never be phased out:

AA used to be justified as a tool to achieve equality, or to redress past wrongs. Now the justification has shifted: It is now a tool used to make sure that classes are diverse, regardless of whether all the applicants are on a level playing field. This ruling ensures that affirmative action is now a permanent fixture of American colleges.

But this next reader points to where AA is not a fixture at all:

I’m so glad I live in a state like California where we understand that race should not matter in college admissions [due to Proposition 209, approved by votes in 1996]. And with a colorblind system, we have a majority non-white state college system. The California experience pretty much shows that affirmative action is unnecessary in getting non-white minorities into college.

Here’s a statistical chronology of that “majority non-white state college system”:


Since 2010—the last year on that chart—another ethnic group has now surpassed White. According to a 2014 piece from US News & World Report:

In California, the state’s flagship, nine-school University of California system announced an eye-opening milestone: that it has admitted more Latino students (29 percent) than whites (27 percent) for the 2014 academic year.

Update from another reader in California:

On the surface, Kennedy’s opinion seems to make sense, as each school can best decide the makeup of the institution and can include race as a factor to address diversity at their particular school. But this decision also brings up some troubling questions. What about diversity of religion? Or age? Females have surpassed males in most undergrad programs. [From that 2014 US News piece: “Women now making up about 57 percent of all college students, an exponential gain compared to around 40 percent in the 1970s, according to the NCES.”] Should being a man be of benefit to the admissions process? Political bent? Sexual orientation?

I don’t know that there’s a slippery slope, but it seems to me that there certainly could be.

A reader writes:

I’m a female black professional who, by any objective measure, earned spots in honors programs and a well-regarded university for graduate school. While I would not say I have been “shamed” by affirmative action, as one reader suggests, the practice has at various points intensified my experience of impostor syndrome.

For instance, I recall having secured an internship with a prestigious institution and sneaking a peek at the resumes of others who had applied. I was surprised by the amount of relief I felt in seeing that my resume was, in fact, stronger than the others. The institution also had an internship program reserved for minorities and I had begun to be bothered by the possibility that perhaps I couldn’t with confidence say that I was just as capable as others who had been hired.  

Aside from any fleeting doubts I might have about my own accomplishments, I do tend to think that the focus on preserving affirmative action in college admissions distracts from the more fundamental problem, which is that the majority of failing public elementary and secondary schools in the U.S. are composed of minority (black and Hispanic) students.

That’s the general question addressed by our latest round of reader emails on the subject, who are taking a step back from the more specific areas we’ve tackled so far, such as mismatch theory, the discrimination against high-achieving Asian-Americans, and the stigma felt by some recipients or perceived recipients of affirmative action. This reader criticizes the policy:

Any time one chooses on the basis of politics rather than qualifications, you are reducing efficiency as well as angering the losers. If we reward people based on ability, it both motivates ability and reduces the value of being a victim. So long as we allow people to declare themselves victim and benefit from it, we will face an increasingly fragmented society as people try to place themselves in a politically benefited group to gain advantages.  

This reader has a more measured take:

I worked at UCLA in 1996 when Californians were debating, and ultimately passed, Proposition 209. The law banned consideration of race, sex, or ethnicity from being considered in public employment, contracting, or education. It has since been upheld after numerous court challenges.

Prop 209 debates dominated campus at the time. I will never forget being at a university “town hall” where the director of the affirmative action program was attempting to explain what AA was and why it should remain.

Last month, as part of our long discussion in Notes on affirmative action and its renewed attention under Fisher v. University of Texas, we addressed the mismatch theory, in which racial preferences in college admissions could do more harm than good if they place unprepared students in the kind of hyper-competitive “prestigious” schools that cause many students to abandon certain academic tracks like STEM or law, or even drop out of college altogether, when those students would have otherwise thrived in those fields after graduating from slightly less competitive schools. (Conor also tackled the mismatch debate.) A reader wonders:

I’m curious if anyone has studied “mismatch” and its effects on legacy admissions at Ivy League colleges. For example, could George W. Bush have become President of the United States on the connections he would have established drinking his way through Texas Tech rather than Yale? Would his behavior and performance while in college have been tolerated had he been admitted to Texas Tech on his own merit rather than to Yale as the son and grandson of elites?

To answer to the reader’s leading question, yes; Gail Heriot, a law professor and member of the U.S. Commission on Civil Rights, addressed the legacy factor in a long report on mismatch theory published by the Heritage Foundation in August. (Heriot also co-authored the amicus brief that Justice Scalia cited in his controversial comments over Fisher last month.) From the Heritage report:

[Duke economists Peter Arcidiacono and Esteban Aucejo and Duke sociologist Ken Spenner] helped to dispel the common belief that beneficiaries of affirmative action catch up after their freshman years with their better-credentialed fellow students. What happens instead is that many transfer to majors where the academic competition is less intense and where students are graded on a more lenient curve. Their GPAs increase, but their standing relative to other students taking the same courses does not.

Again, the authors show that this effect is by no means confined to beneficiaries of affirmative action. White children and grandchildren of alumni who receive legacy preferences have the same experience, earning lower grades than white non-legacies at the end of their first year. While the gap narrows over time, it is only because legacy students also shift away from the natural sciences, engineering, and economics and toward the humanities and social sciences.

That’s what this reader recommends:

I am an under-represented minority with a mixed background who never checked the box during college admissions. In a state that only measures race composition afterwards and does not consider it in admission, that was a formality. But regardless, I don’t want preference or discrimination.

What I see at work, where I report on student demographics, is that fewer and fewer students are checking boxes. Those opting out first are likely students who believe it would disadvantage them, followed by students of mixed race who don’t agree with the terminology of “other”/“multi”/“mixed.”

My children and I have names that belie our complex mixed background (hyphens are too troublesome). Will admissions officers then look at the last names and try to determine race? Will they pore over essays that conveniently mention neither mama’s kimchi nor grandma’s gumbo, desperate for clues?

Can this be an “out” for Asian students? My children may be classified as Asian, since their father is from Western Asia. I would never ask them to choose one heritage over another. But what will they do?

And what happens when we all opt out?

2012 stats for undergrads at UC Berkeley, which under CA law doesn’t allow affirmative action

A reader of Asian descent makes a key distinction:

I strongly oppose the notion that Asian Americans should view affirmative action as being a competitive process only between minorities. Specifically, I am writing in to partially disagree with the Asian American reader who wrote:

When we talk at the group level, AA [affirmative action] is about “blacks getting the same advantage whites always had,” but at an individual level, it means smart Asian kids getting shut out in favor of black or other underrepresented minority kids.

I don’t think the statistics warrant his/her notion that Asians are being rejected for only underrepresented minorities. I think the unspoken quotas currently in place at Ivies are for protecting the Caucasian ratio. If you look at Cal-tech and the UC systems that have done away with affirmative action, it would seem to validate this view.

That seems to be true. Take UC-Berkeley: Their diversity statistics show 3 percent Black, 49 percent Asian, and 29 percent White. Harvard, where affirmative action is allowed, had a record high last year of 12 percent Black—a figure school’s website promotes alongside its 21 percent Asian figure … but it doesn’t provide a White percentage (though that figure appears to be roughly 50 percent when Harvard’s four non-White categories are subtracted from the whole). So if more Asians were allowed into Harvard, they would likely cut into that 50 percent, not the 12 percent Black or 13 percent Hispanic—figures that affirmative action was created to maintain.

This reader proposes a solution to prevent direct competition between underrepresented minorities:

The quotas and “negative affirmative action” practiced upon Asians (i.e. they must perform at a higher level than whites to have equal chances of admissions) can be ended without ending the “positive affirmative action” that exists for blacks (and Latinos, Filipinos, Cambodians, etc.). Admissions officers could simply place applicants into either a race-blind or race-conscious pool depending on the representation of that applicant’s race at the university relative to the overall population of the country (easily available from census data).

A reader of Asian descent makes a historical connection:

The very notion that Asians should be collectively “limited” is outrageous, a direct parallel to the infamous quotas on Jewish students once imposed at many of these same institutions in the early 20th century. Asians are a historically marginalized group in this country. We lack any operative power in terms of political, social, or institutional influence that would make any collective success subject to just intervention on the level of individuals.

A good source for this Jewish-American history is Jerome Karabel’s The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton. He spoke with Bloomberg about his findings:

Karabel: Harvard, Yale and Princeton, up until the very early 1920s, had an exam-based system of admission. If you passed you were admitted. If you failed you were turned away. If you were in the gray zone, then they might admit you on conditions but basically, if you passed, regardless of your social background, you would be admitted.

That was precisely why the system was judged to be no longer viable because too many of the wrong students, the ``undesirable'' students -- that is, predominantly, Jewish students of East European background -- started to pass the exams.

From a reader of East Asian heritage:

When my son was in seventh grade, one of his friend told him that even if he is the football team captain and the student council president, gets straight A’s and a perfect SAT score, he still won’t be able to get into Harvard—just because he is an Asian. (He was the running back of his school football team at the time and a member of school student council.) He asked me if this is true. It saddened me that I couldn’t simply tell him it is not.

When my daughter was six, she played a game at a Girl Scout meeting to learn that they are all equal despite their different skin colors and looks; race doesn’t matter. She was taught so at home and at school for 17 years and she believed in it. I often heard her say that “race doesn’t matter” when the word was “race” mentioned—until her senior year in high school. I asked her what was so great about her friend to make him be accepted to Harvard.  Instead of telling me about his accomplishments, she said that his mother (a Caucasian woman) has some sort of Hispanic lineage, so he is a “Hispanic”.  

This race-based admission process slaps everybody on the face. It tells kids what hypocrites we all are. Our school district has zero tolerance for racial discrimination. Our children were told for all their lives that they should judge people by their character, not skin color. But right before our kids leave home for college, it is our country’s most prestigious institutions that FIRST bring them the news: What your parents and teachers have taught you are lies: Race does matter! We judge you by your skin color!

From an old Dish reader:

It is great to see you in action at The Atlantic curating the discussion instead of letting it devolve into a shouting match between trolls. As an younger, single Asian, I was completely in agreement with affirmative action. I could see that a lot of minority kids did not have the resources and means to get the kind of education that typically wealthy, white kids received. So AA as a corrective made a lot of sense to me.

Two things have made me question my perspective.

A reader writes:

Any discussion about affirmative action is incomplete without a discussion of learning mismatch. The evidence is pretty clear at this point that mismatch is real and producing negative outcomes. Here is a post that discusses it in the context of Fisher.

That post is by Richard Sander, an economist and law professor at UCLA who has spent more than a decade studying the theory of “mismatch”—when the college application of a student who benefitted from affirmative action is significantly weaker than the average student’s at the same college, and thus the AA student would be a better “match” at a less competitive school because he or she is more likely to thrive—both in college and after graduation. Sander argues that a mismatch ends up disadvantaging an AA student even more than if he or she had originally attended a less prestigious college. From his post:

A second form of mismatch—“competition” mismatch—occurs when students abandon particular fields, or college itself, because of the practical and psychological effects of competing with better-prepared students.

John McWhorter, the linguistics professor at Columbia who should contribute to The Atlantic more often, invoked Sander in a piece for CNN yesterday on the Fisher case:

Now, at this point, many object that despite the mismatch, the students excel nevertheless. Here is the rub: the data is in, and in crucial ways and too often, they do not.

A reader in favor of affirmative action, Adrian Gallegos, introduces a new factor to our debate:

Just as a generalization, most minorities don’t have the social capital to take or gain advantages from nepotism as non-minorities do, either consciously or unconsciously. The new word for that is called networking. Networks take time to be established.

A reader who can attest to the power of networking is “an African American who attended a string of elite schools on scholarship from before college through grad school”:

Notwithstanding Justice Roberts’s comments about the benefits of diversity in physics class, the plaintiff herself in Fisher noted that what she was most upset about was the lost alumni connections regarding UT. This is why Justice Scalia’s comments were most disturbing to me, because even if minorities excel academically in “slower” schools, everyone knows the biggest benefits of college are enjoyed after graduation. Good schools will give you a degree and great schools will get you the degree and some connections. Minorities will never be able to affect institutional change within a bubble of such segregation.

Yes, students shouldn’t be pushed to attend schools they can’t graduate from, but I refuse to have others try to make me feel bad for my “lacking” academic performance in comparison to those who benefited from all kinds of tutors, special testing arrangements, medications, etc.  And, of course, we can get really deep and talk about the discriminatory history of the GI bill/ benefits, redlining, and other forms of institutional racism that existed well into the mid of the 20th century.

The African American reader at an Ivy League university who expressed some discomfort with affirmative action responds to the older Black reader who scoffed at her email:

I would start by saying that there is no way I can confirm my identity without disclosing my name, the college I went to, and a picture of my face. Since I happen to be applying to graduate schools, I’d rather not have my name attached to anything too controversial.

Instead of that, I would rather address some of the points made. Before I state anything, I’d like to give a nod to how much work was done to fight for the rights of black students to attend elite schools and have the opportunity to succeed. It is a legacy I am aware of and that I carry with me everyday.

One of the points the other reader made was that I was “shamed by AA.” I hope I didn’t come off that way. Affirmative action could not erase my achievements, and I believe “shame” is best used for when the person in question is actually guilty of wrongdoing. What I was trying to get across was that because my acceptance into an Ivy was seen as “being due to AA,” I felt that all my hard work had been overlooked or erased by my classmates. That also put extra pressure on me in college because I felt like I needed to prove that I belonged to be there, both to others and to myself.

I don’t think my sentiments are strange in the black community; but what does concern me is that whenever I or others voice our questions or struggles with AA, we are seen as “not real black people,” or like “Clarence Thomas.” I would hope that I could express my reservations about AA without being seen as some kind of Uncle Tom or boogeyman.

The following reader seems to agree with our Ivy League black reader, who suggests that if forms of non-racial, non-academic preferences are given to students all the time (e.g. legacy), then race-based affirmative action, however flawed, should be in the mix as well:

The question should be framed as one bigger than race: Should a school be allowed to consider its needs when building an incoming class? A school may desire to promote donations by giving a preference to donors, athletic reputation by giving preference to athletes, political currency by giving preference to the children of celebrities, or a more inclusive culture by giving preference to historically underrepresented classes. Should a school have this kind of discretion?

If so, it seems reasonable that a school should have it in all areas, including race, rather than disproportionately in those areas where discretion will tend to favor the wealthy.

Another reader suspects that I, or the black Ivy League reader, might have fabricated her email and its personal angst with affirmative action (for the record, her identity and Ivy status were confirmed prior to publication):

Why do white people always go get (or make up) some letter from some poor black student who says he or she was harmed or shamed by affirmative action? It’s such bullshit.

But I get it. As a black man whose undergrad years were right at the start of this—1969 to 1973—I’m used to white distraction and bullshit. I have never known a black student who said they were shamed by AA. Never. If you find one you should videotape them and put it up on Youtube.