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Life After Affirmative Action
Will colleges still maintain diversity when they have to make sacrifices for it?


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In Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (BAMN) et al., the U.S. Supreme Court upheld Michigan’s ban on racial preferences in state-college admissions. Similar bans in California, Florida, and other states appear safe from challenge, and more states will be encouraged to adopt similar measures. As for the future of other states’ racial-preference programs in higher education, which were most recently blessed by the Court in the Grutter decision (2003), it is quite possible that, as Justice Scalia noted in his Schuette concurrence, “Grutter’s bell may soon toll,” meaning the Court may decide that the allowable period for using discrimination to make up for past discrimination has ended. Were such a ruling to occur, virtually all institutions of higher education, even private colleges that receive federal funds and are therefore barred from discriminating under Title VI of the Civil Rights Act of 1964, would be prohibited from using racial preferences in admissions.

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What would a world without racial preferences look like?

A prohibition on discrimination in admissions need not result in a lack of diversity. For example, a 2012 study by Richard D. Kahlenberg and Halley Potter found that 7 of 10 universities forced to abandon racial and ethnic preferences were able to maintain black and Latino representation. This statistic is particularly remarkable because the schools in question were competing for students with schools, both public and private, that could discriminate to achieve diversity. Thus it does not appear that the end of racial preferences will inexorably lead to the end of diversity. Rather, the inability of a college or university to make up for the anti-diversity effects of any admission criteria by discriminating based on race will force colleges to determine if such policies are worth it — are they important enough to justify a less diverse student body?

For example, legacy preferences at elite colleges and universities, estimated by Princeton’s Thomas Espenshade in 2005 to be the equivalent of a 160-point SAT boost (for the sake of comparison, the equivalent of a 185-point boost was found to be given to Hispanic applicants) overwhelmingly favor wealthy white families. If 10 to 25 percent of each class is alumni children (who at Harvard, for example, have roughly a 30 percent historical acceptance rate, compared to about 6 percent for all applicants last year) and that group is very heavily white, math dictates that a school’s “diversity” suffers as a result (even assuming that some of those admitted would have been admitted without a preference). The development office will howl at eliminating these preferences. But if diversity is as important as colleges and universities claim it is, eliminating legacy preferences is an obvious first step. MIT, for example, does not consider the legacy status of its applicants. Other institutions should follow its lead.

Colleges may also find themselves tempted to stop recruiting athletes for predominantly white sports such as crew, fencing, squash, and lacrosse.

Finally, what about the use of standardized-test scores such as the SAT and ACT? There is no question that there are racial disparities in standardized-test results: Asians and whites, as groups, tend to score higher than blacks and Hispanics, even when we adjust for income. But nothing prevents a college or university from eliminating these tests as a criterion for admission altogether, or from establishing a minimum score to qualify for consideration but otherwise not favoring the highest scorers.

Of course, such policies could cause a university’s all-important U.S. News ranking to drop. But so what? If “diversity” is as crucial as racial-preference proponents say it is, a diverse class of qualified students would certainly be preferable to a less diverse class of very qualified students. In fact, in a post-racial-preference world, some schools may choose to emphasize grades and standardized tests at some cost in “diversity,” while others may sacrifice a bit of their “elite” status to maintain a more diverse class of students. If the proponents of racial preferences are correct about the value of diversity, students at the more diverse institutions will learn more and have greater success when they graduate, so that the more diverse schools will be more desirable destinations. Do colleges have faith in their own arguments regarding the benefits of diversity?

In defense of their ability to discriminate racially in admissions, college administrators have been vocal about the paramount importance of diversity. Once administrators looking to achieve diversity may no longer discriminate but must instead makes choices to eliminate legacy preferences and stop giving a leg up to rowers and fencers, or to lessen their emphasis on SAT scores and likely fall in the U.S. News rankings, we will find out how important they really think it is.

— Robert N. Driscoll is an attorney in Washington, D.C., and a former deputy assistant attorney general in the Civil Rights Division of the United States Department of Justice. He filed an amicus brief in the Schuette case on behalf of the XIV Foundation in support of the State of Michigan.



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