January/ February 2013 The Next Affirmative Action

Want to help minority college students? Make the entire higher education system more accountable.

By Kevin Carey

Affirmative 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 fund-raising 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.

Kevin Carey directs the Education Policy Program at the New America Foundation.


  • Craigie on January 17, 2013 3:38 PM:

    How are you estimating default rates by race? The FAFSA does not even collect race. The longitudinal studies don't go out enough years -- you'd be getting mostly dropouts, certificate completers and some associate's degree completers, not a representative group. It would be a group, as you note, probably skewed towards for-profit colleges.

  • R.Realist on February 24, 2013 9:34 PM:


    "Richard Arum and Josipa Roksas blockbuster 2011 study Academically Adrift... 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."

    Why should the taxpayer subsidize their education? Will the financial aid loan be more of a burden on the taxpayer, as opposed to the food-stamps and welfare that the minorities receive? Atleast they wouldn't be thousands in debt to the state, for the useless, irresponsibly chosen degrees that they tend to gravitate towards. If minority [black] students are "learning less than whites" [in the public schools funded by the taxpayer], and if studies show that around 40% current minority college students actually graduate with a diploma (meaning the student loans+interest will never be paid back), then why should self-destructive Affirmitive Action policies even exist in this new century of endless debt?
    We should NOT be "devoting more public resources to colleges that enroll students with the greatest academic needs."

  • Jon on April 23, 2013 3:27 PM:

    "Regardless of how the Court ultimately rules, itís 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"

    There the answer right there but the minorities aren't the ones at a disadvantage here its the lower classes. There are plenty of middle class minorities that have the same opprotunities as the majority (and this number is only getting bigger) Affirmative Action should go out to poor students who are actually at a disadvantage.People like this guy keep talking like there are no middle class blacks and no poor whites