The Problem With Sotomayor's Affirmative-Action Assumptions

The Supreme Court justice's take makes sense only if "minorities" are treated as a single bloc.

The Supreme Court ruled Tuesday that Michigan voters did not violate the U.S. Constitution when they banned racial preferences in admissions to public universities. Justice Sonia Sotomayor dissented.

In doing so, she made several assumptions. Her dissent is predicated upon her insistence that:

• Affirmative action in higher education benefits minorities.
• Minorities favor affirmative action in higher education.
• Minorities in Michigan will find it harder to reinstate affirmative action at the ballot than they would've by lobbying appointees who govern state colleges. 

It may be that she is correct on all counts. But it seems to me that all three of these assertions are unprovable, and that it's inappropriate for a jurist to adjudicate as if they're true simply because she personally holds these hotly contested opinions.

I'd further argue that by leaning so heavily and vaguely on the word "minority" in her opinion, she crafted affirmative-action jurisprudence that will soon be hopelessly dated, if it is not already. Consider my home state a portent of the future. In California, Asians make up about 11 percent of the college-age population. Yet 36.2 percent of freshmen admitted to the University of California are Asian, making them the largest racial group overall in the UC system.

Latinos are the second biggest racial group, surpassing whites for the first time this year. They make up 28.8 percent of the freshman class. Whites are in third place, making up 26.8 percent of the freshmen class. "Among 15- to 19-year-olds in California, 49.4% are Hispanic, 29.2% are white," The Wall Street Journal reports, and "6 percent are blacks," who represent 4.2 percent of the incoming UC class.

What are Californians to do with SCOTUS jurisprudence that generalizes vaguely about minorities in higher education? What sense does it make to ask if minorities benefit from affirmative action, as if there could be one answer to the question?

I'd bet heavily that race-based affirmative action disproportionately hurts Asian-American students. Its ultimate effect on blacks and Latinos is beyond my ability to discern.

Does it help some blacks and Latinos?

Obviously.

Does it hurt others?

The scholarly literature on mismatch strongly suggests that the answer is yes, though I remain uncertain about its overall impact. Justice Clarence Thomas would have us believe that affirmative action demeans all who are party to it, impairs learning among black students, provokes resentment that harms beneficiaries, and creates stigma as observers question whether blacks rose on their own merit.

I hope he's wrong.

Lots of blacks think so, and believe affirmative action advances their interests. And many others support it with reservations too complicated to sum up in broad strokes.

Perhaps there is a rigorous way to adjudicate the dispute, but it is beyond my ability. I'm not even confident in being able to discern what Americans generally believe about affirmative action in higher education. Pew recently asked, "In general, do you think affirmative action programs designed to increase the number of black and minority students on college campuses are a good thing or a bad thing?" It found that 63 percent favored affirmative action and 30 percent were opposed. Eighty-four percent of blacks and 80 percent of Hispanics said the programs were a good thing.

But last year, Gallup found that "two-thirds of Americans believe college applicants should be admitted solely based on merit, even if that results in few minorities being admitted, while 28 percent believe an applicant's racial and ethnic background should be taken into account to promote diversity on college campuses." Here's how Gallup phrased the question:

Which comes closer to your view about evaluating students for admission into a college or university—applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted, or an applicant's racial and ethnic background should be considered to help promote diversity on college campuses?

The results:

Or as Gallup put it, "Three-quarters of whites and 59% of Hispanics believe applicants should be judged only on merit, while blacks are divided in their views."

The outcome would seem to depend heavily on how the question is phrased.

Vox helpfully displays the states where affirmative action in higher education is banned, mostly as a result of ballot initiatives:

Given that those are neither the whitest nor the most conservative states in America, it would be strange if Pew's results truly captured general or minority opinion on whether admissions officers at public universities should consider race, but who knows?

Not me. And not, I'd argue, Sotomayor.

Justice Antonin Scalia charges that Sotomayor's approach "promotes the noxious fiction that, knowing only a person’s color or ethnicity, we can be sure that he has a predetermined set of policy 'interests,' thus reinforcing the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, and share the same political interests.”

There's something to that critique, illustrated most powerfully in the way that she just disappeared Asians from her lengthy discussion of race and minority groups. As Ilya Somin puts it at The Washington Post:

Sotomayor argues that the amendment should have been invalidated because, by adopting a state-wide ban on racial preferences by referendum, the voters shifted the decision on affirmative action policies from university administrators and thereby disadvantaged minorities in the political process.

But, in reality, banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways.

He goes on to note that minority-group interests often diverge:

In an increasingly diverse America, there are many different minority groups with a variety of differing interests. On most issues, therefore, there are likely to be minorities on both sides. There are even significant divergences between subgroups within minorities. For example, Cuban-American Hispanics have very different political views from Mexican-Americans and Puerto Ricans. Russian Jewish immigrants, on average, have different views from those of native-born American Jews. And there are many other such cases. 

Along the same lines, David Bernstein persuasively argues that the approach Sotomayor recommends falls apart as soon as the existence of Asians is acknowledged.

In an American Prospect essay defending race-based affirmative action in Michigan, Edmund Zagorin writes:

Michigan's formal pro-white affirmative action policy, colloquially known as "legacy preference,” puts the children of alumni ahead of other applicants. It unquestionably favors the white and the wealthy, at the expense of the poor and the black. Outside of the U.S., legacy admissions mostly went the way of feudalism. But at many U.S. universities, and especially at Michigan, legacy admissions amount to an eternal parade of white pride. Why does legacy preference work this way? Because it reinforces the demographic power of previous generations of whites that benefited from dozens of explicitly segregationist federal and state institutions. Those institutions, from the New Deal to the G.I. Bill, helped whites out of Depression-era poverty while explicitly disadvantaging blacks, locking whole communities into cycles of violence and misery.

He's right. State universities ought to end legacy preferences. So should private colleges. He goes on:

And legacy doesn't even scratch the surface of the biggest instrument of racial discrimination in so-called "race-blind" university admissions: standardized testing. Most scholars of education policy agree that the ACT testing process, like the SAT, favors wealthy white students from suburban environments at the expense of students who are poor black and urban. This favoritism is often deemed a "necessary evil" of education policy, done in the service of meritocratic apples-to-apples comparisons of students' analytical skills. There are many reasons for performance disparities, from cultural assumptions of the test writers to unequal access to prep materials and tutors. 

I've thought less about this critique, but am not particularly attached to the SAT or the ACT. And if I were president of a fancy college, I'd be trying to get my fellow presidents to go in on an initiative to make test prep a lot more equal than it is.

Both projects seem more realistic and productive than trying to salvage race-based affirmative action, which is often used as a fig leaf for universities averse to more radical challenges to their questionable methods, and is less tenable every year that the U.S. gets more diverse. Maybe I am seeing America through the eyes of a Californian. But to me, the future of affirmative action looks like Asian Americans pitted against blacks, Hispanics split among themselves, mixed-race students forcing ever-more-fraught judgment calls, and an inevitable shark-jumping lawsuit from a member of the white minority claiming that he or she should qualify. Wouldn't it be easier to end legacy admissions, pressure colleges to subsidize test prep, and give all poor kids a boost when they apply to state universities?