Should Universities Continue "Affirmative Action" Policies?

George Leef

Leef: Introduction

Although the arguments over racial preferences in college admissions (usually called “affirmative action” by proponents) have been around for many years, this issue is once again on the front burner due to the Supreme Court’s decision to take Fisher v. Texas. That case calls into question the pros and cons of policies that favor certain students simply on account of their race.

Professor James Sterba (of the University of Notre Dame) and I first clashed over this issue at a public forum last fall at Pomona College. Our amiable dispute continued on the Pope Center’s site in December with a further exchange between us. (Any reader who is really into this topic might want to read that before digging into the arguments that follow.) Below, you will find Professor Sterba’s latest effort at refuting my position in opposition to racial preferences and following it, my latest effort at explaining why racial preferences are a bad policy.

Sterba: The Need for Affirmative Action

There is much that George Leef and I agree upon. We both agree that minorities are still significantly discriminated against in the U.S. When I cited data about such discrimination, particularly with respect to the criminal justice system, Leef readily agreed that such discrimination exists.  We also agree that we need to educate our nonminority students, particularly in elite colleges and universities, about this discrimination so that they will be more likely to take action against it. Leef even suggested means for doing this. What we disagree about, however, is whether affirmative action is needed to best serve the goal of reducing discrimination in the U.S.     

Now affirmative action aims to reduce discrimination by admitting qualified minority students into elite colleges and universities who can speak to existing racial discrimination and so help to educate nonminority students and faculty about the necessity of doing something about the problem. Affirmative action also aims to serve that same goal by providing minority students with better opportunities, thus enabling them to more effectively reduce the racial discrimination in their own lives and in the lives of others.        

Yet while Leef grants that the U.S. faces a serious problem of racial discrimination, he does not think that affirmation action is needed to effectively deal with it. This is because Leef denies that minorities need to attend elite colleges and universities to better help them in their efforts to reduce racial discrimination. Leef maintains that the reason for this is that minority students at elite institutions do not, for the most part, get an education that produces better results for them than they would get at non-elite institutions where they would be admitted without affirmation action.    

Nevertheless, studies have invariably shown that minority students at elite institutions tend to graduate at a higher rate, are more likely to pursue advanced degrees, have more prestigious careers, and earn higher salaries than minority students at other institutions (Carnevale and Rose [2003], Century Foundation).  So, for these reasons, minority graduates of elite institutions are more likely to have a greater impact on reducing racial discrimination than minority graduates of non-elite institutions.

I pointed out to Leef that when we look to the effects of elite colleges and universities on minority students, particularly African Americans, we find that 40% of the lawyers at top law firms and 48% of black law professors come from the top ten law schools. We also find that 25% of black law professors in the U.S. have graduated from just Harvard Law School and Yale Law School. Even critics of affirmative action have allowed that if affirmative action were eliminated at those two schools, they would have no African-American graduates.

Leef responded that such affirmative action probably marginally increases the number of black lawyers and professors, but then he denied that there is any benefit from these marginal changes. According to Leef, what matters is just the competence of the lawyers that are being produced and that without affirmative action, we would still have be an equal number of competent nonminority lawyers graduating form elite law schools (although less knowledgeable concerning racial discrimination) in place of the minority lawyers we presently have graduated. So for Leef affirmative action provides no relevant benefit.

But this misses the point.  Existing minority lawyers who have benefited from affirmative action are more likely to have a positive impact on reducing racial discrimination in the U.S. than the nonminority lawyers would who would replace them if there were no affirmative action. While the nonminority lawyers who would replace existing minority lawyers if there were no affirmative action would still be qualified, they would not be as likely to have as great a positive impact on reducing racial discrimination as existing minority lawyers actually have. So there is a relevant benefit from affirmative action.

We can put the point this way: Does anyone think that Barack Obama would have stood just as good a chance of becoming president of the United Stated if he had graduated, not from Harvard Law School (ranked #1), but from Wayne State Law School (ranked #95) - from which sort of school he might have graduated without affirmative action?  Or to put the question more directly: Does anyone think that if the nonminority student who would have graduated from Harvard Law School in Obama’s stead if there had been no affirmative action had been elected President of the United States in place of Obama, he (let’s just assume that the student would not have been a women) would have been just as likely to have a positive impact on reducing racial discrimination in the U.S as Obama has had during his term of office? I just can’t imagine Leef answering yes to either of these questions.

Leef also thinks that there are viable alternatives to affirmative action for educating nonminority students about racial discrimination in the U.S.  When I mentioned a study of 1800 white law students from Harvard and University of Michigan Law School found that 8 out of 10 said that discussions they had with students of other races affected their views of the criminal justice system, Leef responded by claiming that it “would be far more effective… to bring in guest speakers or to assign some readings that challenge the (racial) status quo.”  Of course, any defender of affirmative action would want to combine admitting minority students who can speak to racial discrimination with guest speakers and readings on the topic and incorporate other programs as well, but how plausible is it to think that the actual presence of minority students at elite institutions does not itself make a significant contribution to that educational mission?  Recall that studies have shown that without affirmative action, there would be no black law school graduates from Harvard and Yale Law schools at all.

Suppose, by analogy, someone were to make a similar claim about effectively educating men at elite institutions concerning discrimination against women. Suppose that in the late 1960s early 1970s when many elite private educational institutions were still all male institutions, someone had argued that to effectively educate men about discrimination against women, there is no need to admit women to these all male institutions. Rather, imagine this person claiming that it would be just as effective to bring in guest speakers and assign some readings about discrimination against women. Now does anyone think that we could have made all the process we have in rolling back discrimination against women in the U.S. without also breaking with tradition and admitting women into all male elite educational institutions where these women could speak about sexual discrimination both to their fellow students and to faculty as well?  Hopefully, Leef’s answers to these questions will bring his view closer to my own.

Finally, it is important to note that the form of affirmative action that I am defending here need not be race-based.  I have said we need to admit students who can effectively speak to the existing racial discrimination in the U.S. But white students, for example, who have attended inner city schools or live in inner cities, and are otherwise qualified, could be able to effectively speak to racial discrimination in the U.S. just as some minorities students might possibly not be able to do that.  So the form of affirmative action that I am defending is not race-based.  Maybe that will also help to make affirmative action, so understood, a more attractive option for George Leef and for other opponents of affirmative action.  At least, that is my hope.

Leef: The Consequences of “Affirmative Action”

Despite Professor Sterba’s earnest arguments, I still contend that there is no benefit in “affirmative action” policies, but substantial costs to them. Keeping them going is a very poor trade-off.

What “affirmative action” (what a euphemism!) amounts to is giving heavy preference to college applicants who happen to have (at least some) ancestry that puts them in a favored group. In the University of Michigan cases in 2003, the favored groups were black, Latino, and Native American; I believe those groups are almost always the favored ones, but some schools might add a group or two.

This policy only pertains at a small percentage of America’s colleges and universities – those selective institutions regarded as prestigious.  The effect of racial preferences is to boost a small number of “minority” (i.e., members of groups designated as “underrepresented”) students up into colleges regarded as more prestigious than they would have be admitted to just on the basis of their academic profiles. At the same time, an equal number of students who would otherwise have been accepted at those prestigious schools are rejected and have to settle for one of their “backup” schools.

It is important to stress that “affirmative action” is not about whether any student goes to college or not. It is merely a matter of shuffling a small number of students around in upper-echelon schools.

Preferring somewhat to significantly weaker students because of their ancestry puts them in one of the “underrepresented” groups seems to me to be at best foolish and at worst damaging along several lines: it exacerbates racial tensions; it discourages students who know they’ll benefit from preferences from doing their best work in school; it mismatches students and encourages some to gravitate into less demanding academic fields; and it perpetuates Hayek’s “constructivist fallacy” that experts can improve upon society with interventionist schemes. Nevertheless, Professor Sterba maintains that we need “affirmative action” because it will help overcome the problem of racial discrimination.

At this point, he says that we are in agreement that there is “significant” racial discrimination in the U.S., but I want to make clear just where I think that problem exists. It exists, is widespread, and has very harmful consequences for many individuals, in regard to the enforcement of the law, and especially with regard to laws where there is a great deal of discretion for officials to choose whom to target. The war on drugs is concentrated on minority populations. Arrests, prosecutions, and collateral damage to innocents are disproportionately among blacks and Latinos. All of that social damage grieves me, but not because it is racially disproportionate. I would be just as opposed to it no matter how the damages were apportioned on group basis.

I do not, however, think there is a racial discrimination problem just because on average the earnings of people in those groups that affirmative action prefers is lower than average earnings of people in other groups. What little bias may still remain against blacks and Latinos in the labor market is a) illegal and b) easily circumvented by workers because so many employers evaluate prospective employees on their ability, not on their race.

In any event, preferential admissions for prestige colleges does nothing to improve the employment prospects for the vast majority of “minority” workers. Assuming for the sake of argument that preferential admission policies help a few “minority” individuals, that is not the same thing as helping whatever group they’re said to belong to.

Now let’s consider Professor Sterba’s case.

He maintains that it’s good that prestige colleges employ racial preferences because it ensures that more minority students are admitted to those schools. That, in turn, is beneficial because students who graduate from the “prestige” schools are more likely to go on to professional schools, especially law school. (I’m sorry to say that Sterba ignores my argument that the instruction at “prestige” schools is often inferior—less focused on student needs—than at non-prestige teaching colleges and for that reason often of less educational benefit to students whose K-12 education is relatively weak.)

If they go to law school, those students might enlighten their non-minority classmates as to the damage done by racial discrimination. (To his credit, Professor Sterba admits that many of the preferentially admitted students don’t have any experience with racial bias themselves; in fact, most of the students who benefit from racial preferences come from solid and prosperous families and can no more enlighten their white and Asian classmates about discrimination than the latter can enlighten them.) He makes much of a study finding that 8 of 10 white graduates of Harvard and Michigan law schools agreed that discussions they’d had with students of other races “affected their views of the criminal justice system.”

Put aside the vagueness of that and the fact that many students at such schools are predisposed to saying nice things that seem to support an iconic liberal policy. Let’s suppose that this is a rock solid finding.  Assume that most law students learn from their “minority” classmates how unfair the criminal justice system can be toward minorities. Then what?

Sterba seems to assume that this learning has important consequences – that it has a strong impact on their professional actions. If so, I’m afraid he doesn’t know much about the legal profession. Those white (and Asian) students will (mostly) get jobs in the legal profession and promptly forget about what they heard about our unfair criminal law, just as they will forget about 99 percent of everything else they heard in law school that is outside of whatever their legal specialty comes to be. And even if they occasionally think about discriminatory criminal enforcement, just as they occasionally think about other legal wrongs they’ve heard about, they are in no position to change the law.

We have been playing the “affirmative action” game for about 40 years. How much change has there been in the often vicious and discriminatory enforcement of drug and other discretionary laws? Even if lots of white and Asian lawyers are wringing their hands over it, the laws are the same and the mindset of the police is unchanged. If there has been any progress, which both Jim Sterba and I would like to see, it probably was not catalyzed by moving some “minority” students from mid-tier law schools to elite ones. It was catalyzed by people who innately dislike the authoritarian and unjust treatment of people for any reason. (More on that in a moment.)

At this point, I need to respond to Professor Sterba’s supposed trump card, namely his invoking Barack Obama as proof of how beneficial affirmative action is. What if he hadn’t gone to Harvard (and I suppose we will never know if he got into Harvard purely on academic ability, or benefited from admissions preferences) and in all likelihood would not have been elected president? Then, he contends, America would have lost out on the “positive impact on reducing racial discrimination in the U.S. Obama has had in his first term….”

What reduction in racial discrimination?

The Obama administration has not, to my knowledge, made the slightest effort at changing any of the laws that so often lead to discriminatory enforcement. It has, however, been perfectly content with the continuing over-the-top, paramilitary enforcement of the drug laws and others, such as the SWAT team raid on the Gibson Guitar Company over an alleged violation of the vague Lacey Act. The life, liberty, and property of “minority” Americans (and all others) is no safer now than it was Obama was elected.

That brings me to another part of Sterba’s case – the supposed benefits from having more “minority” students graduate from prestige colleges.

Sterba asserts that those individuals will be more effective “in their efforts to reduce racial discrimination” for having graduated from a “prestige” school rather than a less prestigious one – say, Duke versus North Carolina State. 

What efforts? Most beneficiaries of “affirmative action” simply go about their lives the way the rest of us do. Is there the slightest bit of evidence that individuals are more likely to devote themselves to the cause of battling against discriminatory law enforcement because they have a degree from a prestige college than one from some other school? I’m aware of none.

I’m not arguing that no beneficiary of racial preferences ever does anything to help the in the fight against discriminatory laws and discriminatory enforcement, but that they are no more likely to do so than are other Americans.

While we have made no progress that I can see against the discriminatory drug laws, there has been progress against other laws that have a disparate impact on minority groups, such as the discriminatory licensing laws that enable (mostly white) incumbents to prevent competition from new and often minority-owned businesses. But who won those cases? They were won by overwhelmingly white litigation groups like the Institute for Justice. Check out IJ’s site and you’ll find not a single attorney who benefited from racial preferences.

Maybe that’s an argument in favor of affirmative action for the children of free market advocates and libertarians. That would probably do far more to put people who might be inclined to fight discriminatory laws in positions to do so than are racial preferences. But no, I’m not advocating that.

There are other weak spots in Sterba’s argument I could attack, but I’ll close with this point. Like most advocates for some policy aimed at making society better, he commits Bastiat’s “broken window fallacy.” That is, he fails to take account of the unseen consequences of the policy he loves. Sterba is so focused on the result of reducing racial discrimination that he does not see the costs of affirmative action. It’s as if a doctor were so intent on curing some ailment in a patient with a pet remedy that he completely overlooked the terrible side effects of his treatment.

I mentioned several of those side effects earlier. It causes minority youngsters to do less than their best because they know that preferences will get them into top schools anyway, an argument made by black linguist John McWhorter in his book Losing the Race.  It leads to mismatching of students and schools, putting “beneficiaries” of affirmative action into highly competitive schools where they avoid tough majors in favor of soft ones. It tends to keep racial tensions going where they would otherwise dissipate, an argument made by black economist Thomas Sowell in his book Preferential Policies.

Those are explicit costs, but there is also an opportunity cost. Sterba would have you think that only good comes from “elevating” some minority students. If prestige college credentials are indeed so important, what about the other students who are denied them?

White and Asian students who are kept out of those prestigious schools are at least as likely to have passions in their lives – ideas they’d like to impart to others and causes they’d like to advance—as are the “minority” students who are preferred. They might, for example, have direct or second-hand experience with war and be vigorous advocates for peace. They might do brilliant work in curing diseases. They might want to fight eminent domain abuse. The United States faces many problems besides discriminatory law enforcement and students who are kept out of top colleges because of racial preferences are just as apt to help the nation make progress against them as are the students who get in – arguably more so.

Summing up, I maintain that Professor Sterba has not met the burden of proof. He gives readers no solid grounds for believing that the roundabout “affirmative action” technique actually adds anything to the efforts against discriminatory laws and enforcement; nor has he dealt with any of the serious drawbacks of racial preferences. And, I submit, he cannot possibly show that whatever benefits the nation derives from racial preferences are greater than the losses it suffers from the policy of discriminating against very able students who don’t come from preferred groups.

Image: "Helping Hand on Old Rag" by Shenandoah National Park // CC BY-SA

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