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The Next Affirmative Action

August 02, 2013

On August 28, 1963, America witnessed what was arguably the greatest demonstration for racial justice in the history of the country. Half a century after the March on Washington for Jobs and Freedom, the looming question of racial equality in America remains.

In the lead-up to the fiftieth anniversary of the March on Washington, PhilanTopic is publishing a ten-part series, sponsored by the W.K. Kellogg Foundation, in which some of America's most important writers explore our race issues, past and present.

In the fourth installment of that series (click here for the third, "A House Divided," by Thomas J. Sugrue), Kevin Carey, director of the Education Policy program at the New America Foundation, argues that while affirmative action "as we know it is dying," the Supreme Court's targeting of current policies may be "an opportunity to change the way people think about race and higher education." The essay below first appeared in the Washington Monthly and is reprinted here with the permission of that publication.

Affirmative-actionAffirmative action as we know it is dying. A growing number of states have moved to prohibit public universities from considering race in admissions, and the U.S. Supreme Court recently heard arguments in an anti-affirmative action lawsuit that left little doubt about where the Court's conservative majority stands. Less than a decade after the Court upheld racial admissions preferences in Grutter v. Bollinger, newer jurists like Samuel Alito and Chief Justice John Roberts seem ready to render unconstitutional a policy that has helped generations of minority students grab a rung on the ladder of opportunity.

The Court's likely decision is particularly odious given the college admissions apparatus it will leave in place. Elite colleges warp and corrupt the meritocratic admissions process in a wide variety of ways. Academically substandard athletes, for example, are allowed in so they can play for the amusement of alumni and help shore up the fundraising base. While some men's football and basketball players come from low-income and minority households, many athletes at the highly selective colleges where affirmative action really matters engage in sports like crew and lacrosse that are associated with white, privileged backgrounds. Colleges also give preference to the children of legacies, professors, celebrities, politicians, and people who write large checks to the general fund. All of these groups are also disproportionately wealthy and white.

In other words, the Supreme Court is poised to uphold affirmative action for everyone except minority students. We've come to this point in part because the Court has been packed with people like Roberts, who once struck down a plan to integrate public schools on the grounds that he saw no distinction between race-conscious policies that increased integration and the kind of brutal discrimination outlawed by Brown v. Board of Education. Apparently, John Roberts doesn't see race, so neither should anyone else.

But affirmative action is also dying because it has strayed far from its original purpose. The justification for affirmative action the Court used in Grutter is that schools have a compelling interest in increasing racial diversity because students benefit from learning among people from disparate backgrounds. Affirmative action, once a pillar of the nation's work on behalf of the historically oppressed, is now allowable only on the grounds that it's good for white people.

This allowed Roberts to harangue lawyers defending the University of Texas's affirmative action policies by asking them how much diversity, exactly, they were shooting for, knowing that any specific answer could be struck down as an illegal quota. Perpetual swing vote and de facto King of America Anthony Kennedy, meanwhile, made the sensible critique that UT was giving preference to wealthy minority students, since the university presumably gets more than enough of the poor kind through a state law granting automatic admission to students who graduate in the top 10 percent of their high school class.

Regardless of how the Court ultimately rules, it's time to return affirmative action to its original purpose: leveling the college playing field for students who have been unjustly denied a fair chance at success. And the most important part of that project is expanding this idea far beyond elite colleges and universities.

While Brown is the iconic twentieth-century decision on race and educational justice, the 1954 decision was presaged by a number of crucial legal actions in higher education. Unsurprisingly, states with racist elementary and secondary school policies also discriminated against black students in their universities. In 1950, future Supreme Court Justice Thurgood Marshall argued and won Sweatt v. Painter, which prohibited UT from forcing black students into a separate law school.

And like Brown, the promise of those early victories has been substantially unfulfilled. More than half a century after states were instructed to desegregate with "all deliberate speed," the Justice Department still maintains a division of lawyers tasked with monitoring racial discrimination in public schools. (A DOJ headline from November 2012: "Justice Department Reaches Settlement with Georgia School District to Ensure All Students Can Enroll in and Attend School.") And while public schools are no longer officially segregated, they are still governed by thousands of independent school districts that are substantially funded by local property taxes. Long-term residential and economic trends have made many of those districts impoverished and racially homogenous. As a result, minority students go to schools that on average receive less funding than those serving predominantly white students and are more likely to be staffed by unqualified teachers.

The same patterns persist in higher education. But here's where the two parts of our education system sharply diverge. Both K-12 and higher education continue to suffer from a legacy of racism. There is enormous awareness of the elementary and secondary side of the problem. George W. Bush's signature domestic policy achievement, the No Child Left Behind Act, was designed to erase the "achievement gap" between white and minority students, while the Obama administration's Race to the Top school initiative was touted by both candidates in the recent presidential debates. There is currently a roiling national argument about K-12 school reform, with partisans and advocates arguing for and against standardized testing, charter schools, teacher merit pay, school closings, and many other policies aimed at fixing low-performing schools.

People may vehemently disagree about how to help minority students in K-12 education, but nearly all agree that the students need help in the first place. Yet in every big city with a headline-making, underperforming school district, there's a public higher education system receiving not 1/100th of the scrutiny. Detroit, for example, is widely seen to have the worst public school system in America -- so bad that U.S. Secretary of Education Arne Duncan has said he "lose[s] sleep over" the plight of the city's 50,000 students. But how many people know that Wayne State, Detroit's main public university, has an 8 percent -- yes, 8 percent -- graduation rate for black students? Who's losing sleep over them?

Detroit is, no surprise, a worst case. But it's hardly the only city with a pervasive and largely ignored higher education problem. In Duncan’s hometown, 19 percent of black students who enroll full-time at Chicago State University graduate within six years. At California State University, Los Angeles, it's 22 percent. The University of the District of Columbia matches Wayne State for futility, with an 8 percent graduation rate for black students. The University of Wisconsin-Milwaukee? 19 percent.

Texas Southern University in Houston was once the Texas State University for Negroes --the separate, unequal institution that the state created to avoid integration, leading to Sweatt. Today, it hosts the Thurgood Marshall School of Law and graduates 12 percent of its black undergraduates on time.

Nationwide, the majority of all black and Latino college students fail to graduate within six years. Even those who do finish may not be getting much benefit. Richard Arum and Josipa Roksa's blockbuster 2011 study Academically Adrift, which found "limited or no learning" taking place among a substantial percentage of all college graduates, also found significant racial disparities, with black students learning less than their white peers. Studies of literacy among college graduates have found similar patterns. Black students are also more likely than other groups to default on student loans that cannot be discharged in bankruptcy, leaving financial ruin in their wake, and minority students are targeted by for-profit colleges peddling sketchy degrees and inflated student loans. State governments, meanwhile, give far more money per student to flagship universities enrolling a disproportionately white, wealthy student body than to the regional universities and community colleges where most minority students are educated.

America's higher education system is comprehensively failing to give minority students what they need, and this has little to do with elite college admissions. Including community colleges, fewer than one in ten undergraduates attend colleges with admissions rates below 50 percent. By definition, affirmative action only affects the small percentage of students who are qualified to attend elite schools. Many of the minority students washing out of public universities in droves are the survivors of our infamously substandard K-12 schools, attending local, open-admissions institutions. Their problem isn't getting into college -- it's getting out with a quality degree in hand and no terrible loans on their backs.

So the end of affirmative action, absurd though it is, may be an opportunity to change the way people think about race and higher education. Affirmative action is one of a relatively small number of high-profile issues, like climate change, school vouchers, and abortion, that people form strongly held opinions about based largely on broad ideological affiliation. To be liberal is to favor admissions preferences in college; to be conservative is to oppose them. That's a powerful dynamic, but it has also had the effect of training generations of progressives to believe that they're doing their part to further the cause of racial justice in college by supporting affirmative action -- and nothing else.

In reality, minority students need a much broader reform agenda, one that focuses on giving the colleges they attend a fair share of public resources and then holding them accountable for results. Not all colleges that enroll large numbers of black students have catastrophic graduation rates. Some, like Elizabeth City State University, a historically black public institution in North Carolina, get nearly half of their students through on time. Like many minority-serving institutions, Elizabeth City enrolls students whose academic preparation reflects the dysfunction of our K-12 schools. That's a tough job, and a university with real academic standards shouldn't necessarily let 100 percent of students earn a degree. But there's a huge difference between 8 percent and 50 percent, and the things universities like ECSU do to help students graduate aren't revolutionary: they bring new students to campus over the summer to help them acclimate, they carefully track their academic progress to look for warning signs of dropping out, and they focus hard on academics. But many unsuccessful colleges don't do these things -- or don't do them well -- because nobody outside the institution is paying attention.

States need to start practicing financial affirmative action by devoting more public resources to colleges that enroll students with the greatest academic needs. Along with the federal government, they should also penalize institutions with terrible graduation rates, student loan repayment rates, and post-graduation employment and earning rates, compared to peers with similar student populations. Those who set the national education agenda need to look past the handful of universities that graduate the ruling class and focus on improving the neglected institutions that educate future minority school teachers, scientists, doctors, and engineers. It will require the work of generations, but that's what minority college students -- blinkered jurists notwithstanding -- truly need.

-- Kevin Carey


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