Legal Intern, Manhattan Institute's Center for Legal Policy
Since the issue of racial-preferences in college admissions became part of the popular lexicon after the Bakke ruling, various propositions have been put forth in support and opposition to its implementation. Unfortunately, this critical debate has been distorted by those seeking to advance a specific policy agenda. This has done a considerable disservice to the quality of rhetoric offered by those on both sides of the issue.
Fortunately, there are some scholars out there making substantive contributions towards advancing the debate. Stuart Taylor Jr., a nonresident senior fellow at the Brookings Institution, recently reviewed a new book for the Wall Street Journal called "For Discrimination" by Harvard Law professor Randall Kennedy.
In a rarity for the partisan environment in which these arguments generally take place, as Mr. Taylor notes, Mr. Kennedy acknowledges that affirmative action policies can have negative consequences for those it is intended to benefit, even though he ultimately agrees with these policies on balance:
The meatiest part of the book is a chapter focusing on "the key arguments pro and con" regarding affirmative action. To his credit, Mr. Kennedy provides a crisp, devastating summary of the "arguments con" before explaining why he embraces affirmative action anyway. Criticizing President Obama for pretending that racial preferences needn't involve "diminishing opportunities for white students," Mr. Kennedy makes it clear that affirmative action "does favor . . . some racial minorities over whites with superior records. It does generate stigma and resentment" by "calling into question the ability . . . of putative beneficiaries."
In a very intellectually-honest move, Mr. Kennedy broadens the scope of the discussion to analyze the disconnect between the admissions problem and the proffered remedy:
More specifically, the author concedes that there is much truth in critics' complaints that "the whites burdened by affirmative action are not responsible for the wrongs suffered by minorities"; that many "hail from poorer, more vulnerable families than their wealthier and secure white peers"; that most "beneficiaries of affirmative action are not themselves actual victims of the past racial wrongs" and are "relatively privileged"; and that preferences for well-off blacks and Hispanics siphon "attention and energy that would otherwise be more available to benefit lower-class racial minorities."
In agreeing with affirmative action, Mr. Kennedy must be lauded for laying the framework for his arguments in strong legal and policy terms. In addition to his above points, Mr. Kennedy argues that the Framers of the 14th Amendment did not intend to create a color-blind Constitution, but instead one that pushed for black social justice; he cites the legislative history of the Amendment and the fact that the Framers pursued additional legislation after passing the Amendment that specifically targeted blacks.
In his review, Mr. Taylor attempts to systematically refute each of Mr. Kennedy's arguments for affirmative action. In response to Mr. Kennedy's assertion that reparations should be due to the current generation of blacks for the injustices incurred by their ancestors, Mr. Taylor cites the fact that affirmative action policies have done nothing to curtail the achievement gap between blacks and whites in all stages of education, which remains as wide as it was 25 years ago. Therefore, affirmative action policies are doing nothing to offer reparations to the black community; they do not stem the tide of racial inequality in America, and in fact disincentivize blacks from working harder to get into college by exacerbating the moral hazard problem (i.e. we don't need to work as hard to get in).
Mr. Kennedy then cites the diversity rationale propagated first by Justice Powell in the Bakke decision, but himself doubts the benefits of this manufactured diversity versus the costs of potential stigmatization from resentful, non-preferred classmates. He then claims that affirmative action increases access to the benefits of civic integration for blacks, which Mr. Taylor finds a compelling rationale; however, Mr. Taylor claims that America is naturally integrating well and that those who struggle with integrating into America's civic culture are not the ones receiving the benefits of affirmative action, once again exposing the disconnect between the problem and the remedy.
Finally, Mr. Kennedy claims that affirmative action serves as a "prophylactic" measure designed to make up for potentially impotent anti-discrimination laws. But Mr. Taylor cites numerous data demonstrating the detriment of over-utilization of this stratagem:
Undisputed studies show that black applicants often receive an admissions "bonus" of more than 400 SAT points relative to Asians--the biggest losers in the preference game--and more than 300 points relative to whites, with Hispanics receiving smaller preferences. Studies also show that half of black students rank in the bottom 20% of their classes at most selective colleges and the bottom 10% at most selective law schools. Disproportionate numbers of those aspiring to careers in science, medicine and other challenging fields end up fleeing tough courses for soft majors that are much less attractive to employers. Blacks tend on average to fall further behind their classmates while in college.
A pioneering 1996 study by Dartmouth psychologists Rogers Elliott and A.C. Strenta of 5,000 students at four of the nation's most elite private colleges showed that 45% of entering black freshmen wanted to pursue STEM (science, technology, engineering or math) majors, compared with 41% of whites. Once at college, however, most of the blacks got such low grades in STEM courses that they were slightly more than half as likely as whites to finish with a STEM degree. Subsequent studies have reached similar conclusions. All this does much to reinforce--and, among African-American students, to internalize--the stereotype that blacks are intellectually subpar.
While reasonable people may disagree as to the emphasis or relative worth that should be given to any one of these arguments, these two scholars have undoubtedly done a great national service in offering their well-reasoned contributions to the American public. On an issue that has such long-term implications for the country, the public deserves nothing less.