Bad arguments in defense of race-based admissions policies, Part Two

In the past few days, I’ve read enough bad arguments defending race-based preferences in college admissions to write a month’s worth of posts. However, I’ll conclude this series by responding to some of the bad arguments served up by the New York Times editorial board.

The editors write:

With a single opinion, the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.

They add:

For the second time in just over a year [the first time being the abortion decision], the Supreme Court tossed out a longstanding precedent intended, however imperfectly, to expand basic rights and freedoms to a large group of Americans who had suffered under a legal system that treated them as second-class citizens.

There are three bad arguments here. Let’s start by considering the bit about denying “basic rights and freedoms to a large group of Americans,” i.e. blacks and Hispanics.

There has never been a basic right for students of any race or ethnicity to be admitted to elite colleges at the expense of students with better objective qualifications for admission. The Supreme Court has tolerated such preferences for blacks (while trying unsuccessfully to limit their scope), but never recognized them as a basic right. What would the source of that “right” be?

By contrast, there is a basic right to equal protection under the law and to freedom from racial discrimination. (The sources of these rights are the Fourteenth Amendment and the Civil Rights Act of 1964.) It’s these rights the Supreme Court is trying, belatedly, to protect for large groups of Americans.

Now let’s consider the part about overturning precedent. To state the obvious, the New York Times has no general objection to this practice— for example, in the area of gay rights. It’s only when the Court overturns precedents near-and-dear to the editors’ hearts that they voice this objection.

Nor is there a strong break with precedent here. The “diversity” rationale relied on by Harvard and UNC stemmed from Justice Powell’s concurrence in the Bakke case. 438 U. S. 265, 289–290. But as Chief Justice Roberts pointed out in the majority opinion in the Harvard case, Powell’s opinion (written for himself alone) was the only one that embraced this justification in Bakke.

Decades later, in 2003, the Court finally adopted the diversity rationale in Grutter v. Bollinger. However, it did so grudgingly and with the stated expectation that, in 25 years, such preferences would not be necessary to achieve racial diversity. 539 U. S. at 343.

Twenty years later, it’s clear that this expectation isn’t being met, and won’t be met in the next five years. Accordingly, it’s not inconsistent with Grutter to revisit the issue.

I should add that the Court will still permit colleges to consider an applicant’s claim that he or she has overcome race-related obstacles in ways that support his or her admission. Thus, the Court kept the door open (we’ll see how far open) to the kind of “holistic” review of applications, in which race plays a part, that it has long countenanced.

Finally, let’s turn to the Times’ key argument — that the Court “ignored the reality of modern America, where prejudice and racism endure.” The first problem with this argument is that it runs counter to Supreme Court precedent (a problem the Times, for all of its outrage that precedent was “overturned” in the Harvard case, ignores).

In Bakke, the Court rejected remedying the effects of past societal discrimination as a justification for race-based admissions. And as Chief Justice Roberts notes, it has continued to reject this notion ever since.

Justice Powell rejected “remedying . . . the effects of ‘societal discrimination’” as a justification because it is “an amorphous concept of injury that may be ageless in its reach into the past.” 438 U. S., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310.

Writing in 1978, when there was more “enduring prejudice and racism” than today, Powell stated:

No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups. . .However, [basing admissions preferences on this fact] involves a speculative leap: [that] but for this discrimination by society at large, Bakke "would have failed to qualify for admission" because Negro applicants — nothing is said about Asians — would have made better scores. Not one word in the record supports this conclusion. . . .

Today, 45 years later, it’s all the more speculative to claim that but for enduring prejudice and racism, the blacks admitted to Harvard and UNC thanks to racial preferences would have objective qualifications equal to or better than than the stellar Asian-American applicants who were denied admission because of their race.

What racism and discrimination have black applicants endured? Perhaps the occasional dirty look or being stopped by the police while driving. But the connection between such unfortunate occurrences, if any, and comparatively poor grades and test scores isn’t speculative — it’s non-existent.

Accordingly, a pro-preference argument based on ”the reality of modern America, where prejudice and racism endure” must focus on the parents of black applicants. The argument is: (1) discrimination in modern America depresses the economic status of these parents and, hence, the opportunities they can provide their children and (2) but for this depressed economic status, black applicants as a group would have grades and test scores comparable to whites and Asian-Americans as a group.

These are just assumptions, though. As to the first of them, all forms of racial discrimination have been banned for decades and blacks have benefited from racial preferences during much of this period.

I agree with Justice Sotomayor, in her dissent in the Harvard case, that “racial inequality runs deep to this very day.” But neither she, Justice Jackson in the other dissent, nor the Times presents evidence that this inequality is the result of enduring racism and prejudice.

Again, this is just an assumption. Other reasons could account for the inequality.

It’s no accident that left-wing civil rights advocacy has shifted from pressing for equal opportunity to demanding “equity” — equal outcomes. (Justice Jackson opens her dissent with the claim that “every moment [racial health, wealth, and well-being] gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.” This is absurd. The Declaration of Independence can’t be read as requiring equal racial outcomes.) I submit that the shift to demanding “equity” is a sign of the inability of race spoils system advocates to show that the lack of racially equal outcomes is the result of unequal opportunity.

The second assumption — that the economic status of black parents is to blame for the comparatively poor academic performance of their children — is also unsupported.. Many generations of low-income immigrant households produced students who, as a group, competed successfully with well-to-do college applicants in terms of grades and test scores. Indeed, during the first half of the last century, the children of struggling Eastern European immigrants performed so well that, as Justice Thomas shows in his concurrence, colleges like Harvard had to place a ceiling on the number of Jews they admitted.

The children of immigrants from Asia (some of whom were plaintiffs in the suits against Harvard and UNC) are the latest example — and the latest to be victimized by caps on admission to colleges like Harvard. This, even though many of these immigrants and their children experience racism and prejudice (in addition to the shameful stereotyping in which Harvard indulges).

In fact, the children of Asian immigrants, even those from lower economic backgrounds, tend to outperform other ethnic and racial groups, including whites, when it comes to achievement in education. Thus, it’s implausible to blame low economic status for the problems black students have in competing with whites and Asian-Americans for grades and high test scores.

Justice Powell was right. The causal link between past and present discrimination and the comparatively poor credentials of black college applicants as a group has not, and probably cannot, be established.

Thus, it’s not that the Supreme Court “ignored” the endurance of racism and prejudice. It’s that this racism and prejudice provides no basis — either under the Court’s precedent or as a matter of logic and evidence — for upholding the racial spoils systems of Harvard and UNC.

The Times goes zero-for-three in the opening paragraphs of its editorial.