In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), Justice Lewis F. Powell introduced into constitutional law the well-intentioned canard that race-based affirmative action is permissible in higher education — despite race being a “suspect classification” under the Equal Protection clause of the 14th Amendment — because the presumed benefits of a “diverse” student body constitute a “compelling state interest.” This unsubstantiated rationale was based on Powell’s approval of Harvard’s use of race as a “plus factor” in admissions. Explicit quotas would not be tolerated, but more nuanced consideration of race by college and university admissions officers would pass muster if necessary to achieve “a diverse student body.” Thus was the current model of affirmative action in higher education launched and legitimized. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Court narrowly affirmed the vitality of Bakke, in a shaky 5-4 decision written by the now-departed Justice Sandra Day O’Connor.
Race-based affirmative action is deeply controversial. To many, it offends the “color blind” promise of the 14th Amendment. Despite eschewing the existence of ethnic and racial quotas, admissions officers inevitably work toward numerical targets to attain the “right” amount of diversity. In reality, the “beneficiaries” of affirmative action typically receive very large racial preferences, leaving them ill-equipped to succeed in competition with better-qualified classmates. High-performing ethnic groups such as Asians are unavoidably discriminated against to achieve the desired cross section of students. In 1996, California voters enacted Proposition 209, which banned race-based affirmative action at all state-funded universities. Other states have followed suit. Yet many well-meaning colleges and universities continue the practice of race-based affirmative action, including the University of Texas at Austin, my alma mater. As I have noted previously, in the Fisher case, UT is currently before the Supreme Court a second time defending its race-conscious “holistic” admissions process. Fisher v. UT II will be heard on December 9, 2015.
It has become clear since Bakke was decided in 1978 that the central premise of affirmative action — that diversity improves higher education — is false. In 2012, UCLA law professor Richard Sander and noted legal journalist Stuart Taylor published a towering critique of affirmative action, entitled Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. The empirical data presented in Mismatch, which have never been refuted, show that minority students fare worse when placed in a cohort of academically better-prepared classmates. Educational outcomes are better when students are “matched” with classmates of similar aptitude and ability. Despite the good intentions of affirmative-action proponents, they are actually harming the very students they claim to be “helping.”
Moreover, as Stuart Taylor argues in a trenchant recent article in The American Spectator, “A Little-Understood Engine of Campus Unrest: Racial Admissions Preferences,” affirmative action also foments strife on college campuses. Mismatched students of color who are struggling academically understandably lose confidence, feel isolated, and eventually grow to resent better-performing classmates. Struggling students often become bitter about their poor performance, and in turn become overly-sensitive to imagined slights and/or derogatory comments by their more successful classmates. Some minority students admitted via affirmative action withdraw into racial enclaves on campus (so much for diversity!), while others become “social justice warriors.” As Taylor explains:
The grievance-prone college culture offers ready targets for these frustrated students to blame for their plight: wildly exaggerated and sometimes fabricated instances of racism, trivial perceived “microaggressions,” and the very real racial isolation that is largely due to racially preferential admissions—all leading to a supposedly hostile learning environment.
Racial preferences in higher-education admissions are a failed social experiment. The current campus unrest throughout the nation is undeniable evidence that “diversity” does not improve the learning environment at colleges and universities. Taylor concludes that racial preferences — and the resulting “mismatch” — go “a long way toward explaining the over-the-top demands now roiling our campuses for still more racial admissions preferences; more preferentially-hired, underqualified professors; more grievance-focused courses and university bureaucrats; more university-sponsored racial enclaves; and more apologies for ‘white privilege.’”
In Fisher II, the Supreme Court will have the opportunity to revisit Grutter, and Bakke. It is time to lay to rest, once and for all, the myth that affirmative action improves higher education. All across the country, we are witnessing the opposite.