Affirmative Action Conundrums

Historian, anti-racist activist, and recently named MacArthur “Genius” Grant awardee Ibram X. Kendi made waves on Twitter recently with the following (since-deleted) tweet:

The survey results to which Kendi referred were highly dubious, but his critics seized on a different point. Taking them at face value (as Kendi seemed eager to do), didn't these numbers contradict the central claims of Kendi’s work and indicate that the United States was not, after all, comprehensively bound up in an ideology of “whiteness” and “white supremacy”?

Following three days of viral ridicule, Kendi responded with a 14-tweet thread in which he sought to explain his critics’ “tortured line of thinking” like this:

When White applicants *think* they have an advantage by lying about being a person of color then that means they *do* have an advantage which then means structural racism doesn’t exist. They imagine White people are disadvantaged while White people are on the higher end of nearly every racial disparity. They imagine Black and Native people have racial advantages at the same time Black and Native people are on the lowest end of nearly every racial disparity.

There is one plausible thing in here, and two puzzling things. The plausible thing is that the presence of one advantage for a group does not indicate the absence of a net or structural disadvantage. The puzzling things are, first, that Kendi seems to be suggesting that his critics had inferred an advantage for members of under-represented minority groups in college admissions from a single (probably unreliable) study and not from the widespread practice of affirmative action itself. And, second, that Kendi seems to forget the plausible thing he said and goes on to aver that members of marginalized groups can't have any advantages at all if they are structurally disadvantaged.

But Kendi’s defensive salvo raises broader issues about affirmative action. Why would an anti-racist activist affect skepticism about the existence of an anti-racist policy like affirmative action? And what explains the existence of affirmative action—a policy that powerful universities and employers litigate to continue implementing—in a country in which racism is purportedly endemic?

During the Trump presidency, the relatively young Supreme Court Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed to replace Antonin Scalia, Anthony Kennedy, and Ruth Bader Ginsburg, respectively. Consequently, the political and jurisprudential makeup of our nation’s highest court is about as conservative as it has been in my lifetime. One issue some commentators expect the conservative Court to reassess is the legal status of affirmative action in college admissions. A group calling itself Students for Fair Admissions has already launched lawsuits on behalf of white and Asian college applicants against several prominent American universities, including Harvard, Yale, and the University of North Carolina. So far, they have lost their Harvard case in court and in an appeal to the First Circuit.

From 2009 to 2010, I was in law school myself, and spent a lot of the year prior to that on a law school admissions message board—one of those old forums from the age before Twitter and Reddit, but after the age of Usenet and telnet servers. Unsurprisingly, affirmative action was a topic of constant debate there. Well, how could it not be? A new user's first post would often be their “numbers”—their grade-point average and standardized test scores—and they’d ask the rest of us for advice about where to apply. And we’d have to ask in return: What race and ethnicity are you? The question was of monumental importance to the advice we’d offer.

Though the debate still focuses on college admissions, affirmative action is also an important part of the hiring and promotion processes used by all kinds of employers. It can't plausibly be something that gives disadvantaged people a leg-up at just one particularly important stage of life; rather, it is a procedure that is recapitulated more or less whenever any decision is made. But, notwithstanding its omnipresence, the policy has become entangled in a conundrum—even as affirmative action becomes a fixture of virtually every institution in the country, it is denied credit for its own accomplishments. Why? Because its beneficiaries—no matter how supportive they are of the policy—still do not want to be associated with it. Yes: no matter how much the dialogue has changed, everyone hates the idea of affirmative action. Even Kendi seems to dislike it. The claim that someone has benefited from affirmative action is generally treated more like a scandalous accusation than a neutral statement of fact, even by affirmative action supporters—not what you would expect from a treasured and successful policy.

Affirmative action fails ballot measures even in the most liberal states, and people of goodwill can tie themselves into the most absurd intellectual knots as they attempt to discuss it without acknowledging its inherent unpleasantness. At the same time, the ethos of affirmative action has made it past admissions and hiring into our approaches to interpersonal encounters. Robin DiAngelo and the other handsomely remunerated hucksters in the you're-so-problematic anti-racist cottage industry basically train people to be individual loci of affirmative action psychology in everyday life. And studies bear out that white liberals do in fact exhibit this psychology: they use shorter words with black people than with white people and judge them by less exacting standards. Such studies seem to bother everyone, but why should they? This condescension is just the same policy extended into the personal sphere.

Back in 2009, it was a point of general agreement that affirmative action policies were prima facie discriminatory and hence undesirable, and that they needed a compelling justification to overcome this fact. Even a deviation from colorblindness had to pay respect to the colorblind ideal by justifying itself on other grounds.

This, of course, is how courts have always treated affirmative action. Three justifications were floated at the time. First was the diversity rationale, a relatively centrist justification enshrined in actual law. Schools, it was said, had a particularly compelling interest in ensuring diversity because it made the learning experience better for everyone. A rising tide lifts all ships or whatever. Then there was the historical reparations rationale. The United States had a duty to compensate black people in particular for the injustices and atrocities committed against their ancestors (and the disadvantages they had inherited), and affirmative action was a reasonable means of doing so. Finally, there was the role model rationale, according to which the relative paucity of black professors, administrators, graduates, and so on constituted an additional obstacle for black students since they lacked role models whose success they might wish to emulate.

None of these rationales informs much of the discussion about affirmative action today outside of court decisions. The idea that affirmative action helps white students by bringing the diverse perspectives of black students into the classroom is seen as tokenism that concedes too much to white interests. Affirmative action is no longer really considered a reasonable vehicle for reparations, either; the right way to achieve reparations—if they're justified at all—is to pass a reparations bill. And I don't hear much talk about the role model rationale anymore. If I had to guess, I'd say the hip view is that it misdiagnoses the problem or even blames black people. Plus, years of affirmative action ought to have ameliorated the role model problem, so continuing to use this rationale would be to accept an increasingly limited role for the policy (or would constitute a tacit acknowledgement that the policy had failed to produce its intended results).

So what justifications for affirmative policies have replaced them? Well, none, as far as I can tell. The current conversation about affirmative action denies that there is any sort of tradeoff or that the policy requires any compelling justification at all. Instead, its necessity is substantiated in three new ways.

First, affirmative action is straightforwardly anti-racist, since anything that helps black people is anti-racist. Second, affirmative action cannot possibly be racist, since the people against whom it discriminates are not powerful in such a way as to make discrimination against them objectionable. Third, affirmative action does not really discriminate at all because the whole idea of merit or student ability is itself a racist or otherwise prejudicial notion. Or, at the very least, every current metric we use to assess merit or student ability is racist, maybe even intentionally so. So how could affirmative action possibly discriminate against white or Asian students in favor of black or Hispanic students? By reducing focus on the false concept of merit, affirmative action actually makes the whole system less discriminatory. I find these claims highly unpersuasive, but they're what I tend to hear.

Since I teach at a college myself, I should make clear that I personally have never really found there to be a systematic difference in the quality of the work submitted by students of different races and from different ethnic backgrounds. But firstly, my own limited experience has hardly any evidentiary value whatsoever, and secondly, this is very different from saying that there isn't such a thing as differentiating quality of work at all. On the contrary, I have certainly had extraordinarily good students and extraordinarily bad students over the years. Any college professor will say the same, unless they are trying to muddy the waters.

How could affirmative action play an important role in an allegedly racist, white supremacist society? Critical race theorists hew to the interest convergence thesis, which holds that policies that help nonwhites are only able to pass when they also help white people. For this reason, some writers, like Kimberlé Crenshaw, one of the originators of the theory of intersectionality, have claimed that the group that benefits from affirmative action the most is white women (in Crenshaw's words, the “principle [sic] beneficiaries”). But at least in college admissions, white women do not benefit the most from affirmative action. They do not benefit more than members of underrepresented minority racial and ethnic groups; they could not possibly based on average grades and test scores and admission rates for the different groups. Compared to white men, white women are admitted to college at rates roughly proportional to their representation in the population; they have only slightly lower SAT scores, and they have higher grades. So it is virtually impossible to read into college admissions statistics an energetic affirmative action program for white women. A Vox article making this claim cites only Crenshaw to substantiate it, and Crenshaw's own article has no footnotes whatsoever—a very rare thing in a law review.

The most charitable interpretation of this mistake is that it rests on a grammatical error. One might think most people who benefit from affirmative action are white women, even though they're not the ones who benefit the most on a person-by-person basis. But even if white women get a small boost in college admissions relative to white men, one must still take into account how racial affirmative action affects their chances. It is obvious from a simple look at the data that if affirmative action provides a small boost in college admissions for white women, this is only because Asian applicants are so disfavored by affirmative action.

The incoherence of anti-racist agitprop extends beyond affirmative action. Progressives and anti-racists advocate an end to colorblindness, not just as a theoretical ideal of liberal neutrality, but as a matter of practical politics and the letter of the law. But it's hard to see how such a development could possibly benefit people of color in a genuinely racist society. When I ask why racist institutions might be so committed to affirmative action, I'm sometimes told that it’s merely a matter of public relations—a kind of cosmetic diversity. But this just pushes the need for an explanation back a step. Why would diversity itself be prized by the public in a racist society? The public relations explanation actually makes affirmative action more mysterious, not less, to those who believe in the ineluctable power of whiteness or white supremacy.

Of course, some people use “racist” or “white supremacist” to describe a kind of state of affairs or distribution of resources rather than a set of beliefs people might actually hold. If that's what you mean by the terms, there's no mystery; but if that's what you mean, you also won't have recourse to “white backlash” explanations of political events, or to other elaborate stories about the psychology of white people. Most people who say that society is broadly racist or white supremacist mean that people hold, implicitly or explicitly, to racist or white supremacist ideologies, and that this explains their beliefs and actions.

The best explanation of this conundrum available to anti-racists is that the racism in American society is not due to its elites and their institutions—those people are trying to “do the work.” Rather, American racism is the product of the leftover dregs of historical racism that manifest as implicit biases, and larger pieces of racism that end up as explicitly racist individuals, like the police officers who kill unarmed black men. Racism is a powerful force, but only as a set of implicit assumptions among the powerful, or as the combined power of a group of racist individuals who are really quite impotent in isolation. This picture of American racism is more or less the one that, say, Hillary Clinton's presidential campaign painted—the “basket of deplorables” and all that. Progressives and leftists mock it along with anti-woke conservatives, but I don't see what other story those progressives and leftists can offer to explain the fervor with which American corporations and colleges practice affirmative action, or to explain how colorblindness hinders minorities.

This theory, however, faces an empirical problem and a political problem. The empirical problem is that the construct of implicit bias is questionable. It's not at all clear that it's an accurate model of human psychology, and even if it is, it's not clear that implicit biases are causally responsible for racist acts. The political problem is that the theory valorizes wealthy, prestigious, urbane Americans at the expense of ordinary ones. This political formation—sometimes called “woke capital” or “the professional managerial class”—is the sort of group that progressives spend considerable time and energy attacking.

A different kind of theory of this sort holds that powerful people aren't racist, but that they also don't want to trouble themselves much with real problems, or to think about just how racist America is. So they practice affirmative action and similar policies due to a tense combination of genuine conviction and denial. I suppose this is politically better than the above theory, but as psychology it strikes me as even worse. It requires us to think of people as suspended in a constant state of cognitive dissonance around race, motivated primarily by the irrational need to ignore what is obvious.

I don't know what will happen to affirmative action policy in the coming years and decades. The Supreme Court may reverse course on its legality, that wouldn't solve the profound underlying problem about how people are motivated to understand the world. Nor would it address just how extreme the progressive and anti-racist discourse around this sort of policy has become. We need to reconstitute a defense of our meritocratic institutions and of our individual psychologies. We need to recover an ability to look at the world in a race-neutral and colorblind enough way that it is preferable to the patronizing and race-obsessed status quo. The perspective presently dominant is not even capable of making sense of itself.


This is a companion discussion topic for the original entry at https://quillette.com/2021/11/12/the-affirmative-action-paradox/
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I recently read some Thomas Sowell quotes about how while Jews and Asians are minorities, they don’t get whatever advantages of affirmative action there are. The only minorities that count are those liberals feel sorry for.

I suppose the role model argument might hold for elementary schools, but college students’ claims there are just performative.

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A thoughtful article.

I am white, and two of my children had two very good friends growing up who were from families with one parent who was every bit as white as me, and the other parent who had some hispanic heritage - in one case because a parent was Mexican American and in the other case because a grandparent was originally from a Polynesian Island where Spanish was spoken. In both cases, the girls claimed hispanic heritage (i.e., How do you identify?) and both sets of parents encourage them to claim it as they were under the impression that his could help their chances for admission and/or scholarships due to the affirmative action and/or diversity goals of the higher ed institutions to which they applied. At least, this was the story as I understood it.

Both were lovely young women and I wanted nothing but the best for them, and both girls were academically just like my daughters - very good students with plenty of As, a few B’s, and SAT scores in the upper quartile but not in the upper 10%. Again, this is what my daughters told me. For the record, I thought it was strange that kids shared this information about their grades and SAT scores with each other. Growing up I only had a vague idea of what my friends grades were and no idea what their SAT scores were, but that is neither here nor there. They seemed to blab to each other about all of this, and I assumed their stories were mostly accurate.

The end of story is all girls went to competitive (but not elite) universities, and my 2 girls got a couple of very minor book and fee type of scholarships along the way (e.g., $500 for one semester), but otherwise our family paid full price. Their friends with hispanic ethnicity got very generous scholarships from the get go.

I am thankful all the girls made relatively safe passage to their adult lives, and the honest truth is that our family could afford what we paid for our daughters’ college education. We were not excessively burdened by the cost by any stretch. Also, I don’t know for certain that their friends got the financial assistance because of any affirmative action.

I’m actually am OK with this rationale for affirmative action:

Especially at public universities, I can understand why a university doesn’t want to have their freshman class dominated by just one racial group. Part of a good education is meeting and interacting with people who have different life experiences. Also, public universities should strive to serve their entire state population, not just one group. So, I get it. I don’t think diversity considerations should trump everything else, but I support it being a factor for consideration.

But, in the case of these two friends of my daughters, I saw them growing in a predominately white community and they were not physically nor culturally different than my daughters in any discernible sense. I don’t think their families had any more or less money than our family. So, should they have received (if they did) any advantages because they identified themselves as hispanic?

I don’t think I’m the only white parent who is not especially angry and resentful about affirmative action in college admissions, and is not necessarily opposed to the idea of affirmative action. But, at same time feels a bit torn that it is not being applied or playing out as envisioned in many cases. I’m interested in hearing the thoughts of others.

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A unbiased appraisal of the societal value of affirmative action educational policies can’t be seriously framed around extremist views, public popularity or the numbers that individually benefit.

Public perceptions that hinge on misunderstandings or misrepresentations that AA is a racist policy in that only people of colour are admitted to elite educational institutions without academic merit when the reality is the overwhelming majority are white via sports, donor or legacy favouritism are not reliable barometers of the actual value of such policies. The resistance to the ‘why can’t we just be colour blind’ narrative is because it isn’t in the first place.
Ultimately the value of such policies should depend on their utility for society rather popularity based on false or bias perceptions. That AA doesn’t substantially improve racial inequalities at an individual level & changes at the k to 12 level are more likely to doesn’t invalidate its value in other ways. A country with a very recent historical past of racial exclusion & segregation that doesn’t move on via an acceptance of racial diversity especially at the elite levels of education where future leaders & powerful members of society are routinely made not only reflects an unjust society but sends a very powerful symbolic message that not all that much has changed only inviting racial resentments & unrest.

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My story is much like yours. My three daughters all went to a magnet high school with excellent AP programs, and were admitted to competitive liberal arts colleges, had excellent experiences, and all in the end emerged debt-free. Their high school every year had a few students admitted to Stanford and the Ivies (though it was noted, never Yale – Yale seems to have a special exclusiveness). None of mine wanted the Ivies, I live little use for the Ivies, and couldn’t care much about their admissions policies as such.

But, as the writer says,

That actual law is from

in which Justice O’Connor wrote for the court

The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Eighteen years later, this hardly seems the case. The universities seem to make it their agenda to protect and perpetuate their system of preferences. In the case of the elite private schools, indeed as @Ella-B says, a large percentage of the students are admitted not on the basis of academic merit per se, but thru sports, alumni and donor favoritism, or the fact that they are coming from the elite highly selective (and expensive) private schools, which tends to make the main core of the student body very homogeneous, far more so than would be the case at typical public institutions, even the best research universities. Then to provide the appearance of diversity, they admit ‘people of color’, many of whom have the same kinds of connections thru parents, sports , or private high schools. It’s a phony kind of diversity – ‘deplorables’ need not apply. Substituting a couple words here…

And it is a game which works against the interests of the greater number of ‘minority’ people, those without the connections, because the bottom of the ladder is beyond their reach.

The presumption in Grutter v. Bollinger, that promoting diversity for it’s own sake is good public policy is not necessarily wrong. But doing it consciously on the basis of race (even within a ‘holistic’ view) ultimately doesn’t work. In Brown v. Board of Education, the court ruled that “Separate but Equal” is necessarily unequal. Here, taking race into consideration, even for well-intentioned purposes, ultimately has unintended side effects. That’s where the conundrum begins. Discrimination on the basis of race is discrimination on the basis of race.

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It’s an essential factor of how they fund programs as those categories tend to correlate with donating.

The endowments received from donations do provide access to those who would not normally be able to afford to attend. I would also add being from the same class structure doesn’t necessarily mean there aren’t differences in cultural background that are still largely maintained that also applies regardless of race. A white farm boy has something to offer a white city boy despite their class.

Harvard’s endowment is crucial to our excellence in teaching, learning, and research, as well as the University’s purpose-driven initiatives and partnerships on campus, in our neighboring communities, and all over the world.
Connected to a long tradition of philanthropy, the endowment supports an incredible range of activities and work, including student aid, faculty positions, groundbreaking research, the arts, community programs, and much more. The endowment’s support for operations enabled Harvard to grant $597 million in financial aid and scholarships in the 2021 fiscal year alone.
Harvard’s endowment is made up of more than 14,000 individual funds, the majority of which are “restricted.” This means that donors have specified that their gift must support a particular aspect of the University’s work, from specific scientific research to named professorships and dedicated scholarships. These philanthropic gifts are critical to many areas of our work, each with a unique person and story behind it.

Sure but unlike the unacceptable discrimination of the past it’s one of inclusion rather than exclusion. Whites may miss out on a minuscule proportion of positions but still maintain the majority presence that without AA racial exclusion would largely eventuate. But in keeping with the intended impermanence of the law there’s no reason why that won’t change in the future as poverty declines its just going to take longer than was envisioned.

I also think it’s a matter of framing that’s very dangerous to view as a discrimination solely on race because when you think about it, it applies to a lot of situations where there are racial winners & losers.
The essence of the preference is the benefit it will provide not the race ie diversity just like the benefit of a legacy admit may provide is endowment. A real estate agency may choose to prefer to employ numerous individuals of Chinese descent because it has numerous buyers that prefer to speak with agents in that language or to deal with someone of their own culture. A medical centre may prefer to have some positions filled by female doctors because their clients prefer to deal with them. Is this racial/ sexual discrimination?

This on the face seems like a reasonable argument, at least, and certainly Australia or the UK the parliament could make it the basis for public policy. But in the US it runs head-on into the interpretation of the ‘Equal Protection Clause’ of the 14th Amendment. For an overview, see
https://constitution.congress.gov/browse/essay/amdt14-S1-4-1-1/ALDE_00000816/
As interpretation has evolved, any racial classification is inherently suspect, and probably subject to 'strict scrutiny." From the link:

“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Remedial racial classifications, that is, the development of “affirmative action” or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain. A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.

Yes, donors can put conditions on their gifts, specify them for ‘good’ purposes. But whereas in the past, a donor might have specified that an endowment was to provide a scholarship to a white female Baptist, any such restriction has since been declared invalid. It is simply not allowed. Also, while Harvard as a private university has somewhat more flexibility than a public university, the fact that it does accept federal dollars and applies them toward student tuition, makes it subject many of the same rules as a public institution. It can’t use endowed funding for a purpose which runs against equal protection.
That is the setting in which the affirmative action framework has been stretched and twisted possibly to the breaking point.

In Australia we have very similar anti discrimination laws to the US but there are exemptions called ‘special measures’ that are utilised in the form of affirmative action mostly for our indigenous population given the history of previous discrimination that still has serious consequences today. Special measures legislation is not unlike the US constitution’s allowance for “compelling government interest”. Although some Aussies do grumble about AA it’s a largely accepted policy that I think is has been a crucial component of working toward reconciliation & social cohesion that Australia seems to excel at comparatively to the US.

Is that enshrined in law? I would have thought funding that did not arise from the government would not be subject to discrimination laws.

Yes, essentially. Much federal policy is enforced thru conditions on appropriations. In the case of corporation, if a company does contract work for the government, it is pretty much bound by federal regulations, not just on the particular project which the government is funding, but across the whole of the company’s operations. In the case of vaccine mandates, for example, the federal government has significantly more leverage in requiring that all employees be vaccinated than it does in trying to order that any company with 100 employees must require vaccination.

In the case of colleges and universities, as I said, if the colleges administers any federal financial aid, whether loans or grants, it necessarily agrees to the whole range of federal requirements. As I said in the example, the school would be prohibited from giving out any aid with religious stipulations, even giving them from its own endowment.

What you say about ‘special measures’ in Australia makes sense. But in the US, since the 14th Amendment did not provide for any special measures for the benefit of former slaves, but merely prohibited discrimination against them on the basis of their former status, there’s not much room for something like that. It goes to ‘strict scrutiny.’ And in the end, it will likely fail.

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Liberals tend to see the disparities which some groups experience as driven by socio-economics which is correct, and driven by the economic side of the formula which is not. In reality it is the social drivers which also tend to correlate with life at the bottom of the socio-economic ladder which are so harmful. It’s why Chinese Brits, on free school meals, from the poorest quintile perform in the national exams at 16 perform at almost exactly the same level those from the top quintile.

It’s two parents in the home and the peer group which make all the difference. We see it in the way that parents from much poorer countries band together to form their own communities and produce a next generation which defies all the odds, in terms of what a liberal might think in terms of their future trajectory. Material resources have little or nothing to do with it. It’s about the mechanism of parental engagement, paired with the removal of negative influences which comes from two parent families, and it amplifies out in the peer group.

That’s where the disparities come from, and why they won’t be fixed until someone smart decides to use vocational training and a blue collar ‘stepping stone’ generation to remedy this tragic loss of potential. It’s not racism, it’s the sheer stupidity of those who operate in the world of ideas. Their inability to grasp hold of uncomfortable truths and embrace them have led to nearly sixty years of failure for so many in live in the worst neighbourhoods, regardless of their race.

As usual, my essays are to be found on my Substack which is free to view and comment:

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I think you misunderstand how the woke see white women as the greatest beneficiaries of affirmative action. They don’t accept that there’s any way anyone other than straight white males have ever or could ever get admitted to a prestigious university or obtain a high-level corporate job other than affirmative action, so the fact that white women and Asians are overrepresented relative to blacks and Hispanics just means that they are benefitting from affirmative action more.