After equivocating for decades, will the Supreme Court finally declare that discrimination is illegal?
Peter Arcidiacono, an economist at Duke University, and two of his colleagues, Ken Spenner and Esteban Aucejo, published an academic paper in 2012 on how racial preferences affect the number of black science and economics majors at elite universities. It’s the type of research the Supreme Court might keep in mind now that it has agreed to hear cases challenging the use of race-conscious admissions policies at Harvard and the University of North Carolina.
Mr. Arcidiacono and his co-authors found that among incoming freshmen at Duke who reported a major, more than 76% of black males intended to major in economics or the hard sciences, a higher percentage than among white males. Yet only 35% of black male students went on to obtain a degree in one of these majors, a drop of 41 percentage points. In contrast, the difference between initial and finishing proportions among white males was only 5 percentage points.
Remarkably, the study found that this gap in attrition rates could be accounted for by looking at entry-level tests scores among students. Like other selective schools, Duke admits some black students with lower SAT scores on average than those of white applicants, but other black students who are admitted have academic credentials that match those of the typical Duke freshman. Not surprisingly, those black students with test scores similar to the white average were no more likely than white students to switch out of the more challenging engineering, economics and natural-science majors.
The Duke findings are important because they demonstrate that racial preferences in college admissions are not only legally dubious but also counterproductive. Students who would likely thrive at less selective institutions are struggling at elite schools, where they are admitted for aesthetic purposes. After the University of California system ended its race-conscious admissions policies in the 1990s, black students were steered into schools that better matched their academic preparation, and black graduation rates rose. Proponents insist that no black middle class would exist in the absence of affirmative action, yet the track record suggests that racial preferences have resulted in fewer architects and scientists and physicians than would have existed in the absence of these policies.
Nor should racial preferences be credited with creating the black middle class. “There was a substantial black middle class already in existence by the end of the 1960s,” wrote Stephan and Abigail Thernstrom in their landmark 1997 study, “America in Black and White.” That middle class “has continued to grow, but not at a more rapid pace than in the preceding three decades, despite a common misimpression to the contrary.”
The plaintiffs in the cases against Harvard and UNC are hoping that the Supreme Court will finally stop kicking the can on racial preferences, which is essentially what it’s been doing since the 1978 Bakke decision, when the court banned numerical quotas but said that race could be one of several factors considered in college admissions. Nevertheless, it has become a major factor even while school admissions officers pretend otherwise, and they will continue down this road until the court decides that the Constitution and the Civil Rights Act of 1964 mean what they say: that discrimination on the basis of race is illegal.
The Constitution prohibits such public entities as UNC from denying “any person . . . the equal protection of the laws.” Federal statutes say that private entities such as Harvard that receive federal funding cannot racially discriminate. The Supreme Court last weighed in on this issue in 2016, when it upheld a race-conscious admissions policy at the University of Texas. Since then, its makeup has changed. Justice Anthony Kennedy, who wrote the majority opinion, and Justice Ruth Bader Ginsburg, who joined it, are no longer on the court and have been replaced by Justices Brett Kavanaugh and Amy Coney Barrett, respectively. Given that the court now has six members who presumably are skeptical of racial double standards and only three who aren’t, perhaps the question is not whether it will reduce the role of race in college admissions but how far it will go.
In a 2007 opinion, Chief Justice John Roberts wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The chief justice has earned a reputation for incrementalism, but my hope is that he swings for the fences. And my guess is that most Americans would cheer the move. Voters in California, the most populous and racially diverse state, soundly rejected an effort last year to reimpose racial preferences in the UC system. A Pew Research Center poll in 2019 found that 73% of respondents, including 62% of blacks, said race should not be considered in college admissions. Activists and politicians favor these policies out of self-interest and to the detriment of public civility and racial progress. The justices have an opportunity to do what’s not only right by the Constitution but also popular.
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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator. Follow him on Twitter here.
This piece originally appeared in The Wall Street Journal