A Call for a New Affirmative Action

James McIntyre (PO ’19)


On June 23, 2016, for the first time in his judicial career, Justice Anthony Kennedy voted to uphold racial preferences in university admissions. His liberal shift provided the swing vote for the 4-3 decision, thereby cementing the legal basis for countless college admissions policies around the country intended to correct the effects of discrimination—otherwise known as the affirmative action policy.[1] Pronouncements of victory in newspaper headlines and social media newsfeeds tempt some to close the debate surrounding the policy. But as Justice Kennedy emphasized in his majority opinion, Americans must continue to scrutinize the “approach in light of changing circumstances, ensuring that race plays no greater role than is necessary.”[2] While racial preferences have now found robust legal precedent, lawfulness demonstrates little regarding the policy’s efficacy and fairness. Furthermore, it is not unthinkable that a future court might reverse on this issue. With this in mind, public colleges ought to re-consider their affirmative action protocols.

This article examines the original purpose of affirmative action, highlights some of the problems of the current program in colleges that employ the policy, and concludes with an alternative to the current system.


1. The Purpose and Discourse of Affirmative Action

In 1961, President Kennedy issued Executive Order 10925, declaring that “it is the policy of the executive branch of the Government to encourage by positive measures equal opportunity for all qualified persons within the Government” and that “it is in the general interest and welfare of the United States to promote its economy, security, and national defense through the most efficient and effective utilization of all available manpower.”[3] In this order, President Kennedy asserts his intention to promote opportunity equality. The order proceeds to outline non-discrimination policies concerning government employment. Numerous companies, government agencies, and colleges across the country have adopted similar policies intending to level the playing field with respect to gender and race. While arguments abound regarding all of these policies, this article will only focus on race-based affirmative action implemented by public colleges as permitted by state and federal laws.

Education has long been a realm rendered inaccessible to racial minorities by various forms of discrimination and inequality. Given this history, proponents of the current affirmative action program contend that racial minorities must be granted admissions preferences. Without them, so the argument goes, minority applicants start from a disadvantaged position. Racial preferences are therefore necessary in the name of fairness.

Proponents of racial preferences point to the mountains of empirical evidence demonstrating that racial minorities are still unfairly subject to discrimination in modern times. For an example in the professional realm, a study from the University of Chicago found that individuals calling employers who used “white names” were 50 percent more likely to receive callbacks than those who gave “black names.”[4] The U.S. Department of Housing and Urban Development estimates that two million instances of housing discrimination occur each year, with over 99 percent going unreported.[5] Many of these instances are believed to be due to racial discrimination. Countless examples of modern racial discrimination exist today. Well-documented psychological and social phenomena tell us that inequality penetrates deep into our society through cracks in the legal system; de jure equality is not necessarily synonymous with equal opportunity. Racial preferences attempt to rectify this injustice.

Despite the strong empirical evidence of modern racial discrimination, modern discourse surrounding this topic has focused on diversity rather than fairness. Academic administrators contend that racial preferences are necessary to achieve racially diverse student bodies. They often argue that a variety of viewpoints is essential to impart an adequate education to students, as was argued in Fisher v. University of Texas.[6] This assertion has proven far more controversial than the notion that racial discrimination must be countered. Critics of affirmative action express frustration that universities are willing to engage in what they perceive as “reverse discrimination” so that students might hear a viewpoint from a peer with a different skin color. This sort of end is, for many, less persuasive than the goal of counteracting discrimination. However, upon closer examination, the justifications of diversity and fairness both face challenges. The following section will explain some problems with the current program’s philosophy and implementation.


2. Critique of the Current System

Diversity and fairness arguments in favor of racial preferences are frequently charged as discriminatory and unfair themselves. Critics, like Abigail Fisher, the plaintiff of the 2016 Supreme Court case, maintain that any use of race in admissions standards is discriminatory. They argue that admissions ought to be colorblind, and that racial preferences undermine the tenet of equality. Such critics frequently refer to racial preferences as “reverse discrimination.” Proponents respond by highlighting discrimination’s debilitating effects on minority communities, and argue that systemic racism renders colorblind admission a fantasy. They believe that an earnest pursuit of admissions equality requires the consideration of race.

Even if, theoretically, modern society is currently free from discrimination in all its forms – as some affirmative action critics contend – minority applicants still suffer from the effects of generations of discrimination. According to research, minority students are more likely to live in poverty, suffer from obesity, and have a parent who experiences more severe stress than their white peers.[7], [8], [9] Consequently, the argument goes, even if white individuals are not directly responsible for the plight that many minorities face, they still benefit from historically oppressive systems. If nothing is done, in effect, whites receive special treatment. This logic leads to the conclusion that some form of remedy is sensible, if not required, in the spirit of fairness.

This argument for fairness implies that reparations are what matter. It asserts that those who have been historically oppressed ought to receive a boost at the expense of those who benefit from that oppression. In this case, the reparations come in the form of preferential treatment for minorities. But reparations, while theoretically sensible, raise a variety of practical questions. For instance: who should receive them? Who should make them? How far should they extend?

Answering the first question of who should receive reparations requires knowledge of precisely who is disadvantaged. How should one judge the disadvantage, for example, of a student with a white father and black mother? It is probable that this descendant has endured some discrimination as a result of his complexion or heritage. However, he has also benefited from much of the discrimination for which affirmative action purports to atone, given the fact that his paternal ancestors were white. In another difficult case, imagine a fair-skinned black applicant whose parents are self-made millionaires. Clearly, ingenuity and possibly luck on the part of this individual’s parents played a role in ameliorating past detriments. This individual’s lighter complexion might also allow him to face less discrimination. However, racial identity is more complex than skin tone. This makes it especially difficult to determine whether this person should be entitled to a racial preference. These examples pose problems concerning who ought to receive reparations by muddying the waters of what constitutes race-based disadvantage.

The second question that reparations pose, regarding at whose expense they should be made, is perhaps the most provocative and brings about claims of reverse discrimination. Since racial preferences directly benefit minority admissions at the expense of other groups’ admissions chances, opponents of affirmative action conclude that non-minorities are in effect “paying for reparations.” This probably explains why, according to public opinion polls, only 22 percent of whites support “preferential treatment” for minorities (while 58 percent of blacks and 53 percent of Hispanics do).[10] Many whites question why they should pay for injustice, that they did not themselves personally impose. They remain unpersuaded by the argument that they benefit from systemic oppression or implicit racial bias. Given this reality, a large portion of the country will continue to vehemently oppose racial preferences.

How far should reparations extend? This question brings up many others: For how long should they last? How much of a preference is justified? The appropriate ways to determine any kind of answers to these questions are highly contentious, and beyond the scope of this article. However, the fact remains that admissions officers can only guess as to how much discrimination an applicant has faced. No statistic or piece of information in an application can convey to an admissions officer the experiences that an applicant has lived as a result of race. There is much potential for admissions officers to falsely equate two applicants’ stories on the basis of reported race rather than an accurate understanding of their lives.

Even if one accepts that racial preferences promote fairness in theory, current programs still suffer from the charge that racial preferences fail to improve the admissions chances for disadvantaged minorities. Racial preferences de facto benefit those who in fact need the least help out of their demographic group in gaining admissions to college, as well-off minority students receive the same cushion as disadvantaged minority students in the admissions process from racial preferences. Georgetown University Law Professor Sheryll Cashin goes as far as to claim that universities “create optical blackness but little socioeconomic diversity” and that today’s affirmative action policies allow “high-income advantaged blacks to claim the legacy of American apartheid.”[11] Cashin herself is black, and her children would benefit from the current affirmative action program, but not from her proposed reforms.

There is no reliable data regarding the extent to which wealthy minority individuals or their families benefit from affirmative action. However, the larger idea at stake—that racial preferences inaccurately trawl the academic pool for disadvantaged individuals—is valid. A wealthy minority student receives benefits from the current program. Even if these benefits are just, racial preferences are not the most accurate way to gauge disadvantage. It seems wrong that a minority student with millionaire parents should receive an admissions preference while a poor student, regardless of race, does not. The current program could actually encourage colleges to accept well-off minorities with superior academic credentials rather than low-income minorities who might have just as much academic potential. According to the Harvard Crimson, a disproportionate number of black students at Harvard are children of immigrants rather than descendants of slaves.[12] These individuals frequently come from more privileged backgrounds and, according to Journal for Blacks in Higher Education, they predominantly benefit from diversity expansion programs at Ivy League schools, along with other relatively wealthy minority students.[13] This poses a problem, especially for a program that is implemented explicitly for the sake of promoting educational opportunity. Furthermore, “optical blackness” only promotes one kind of diversity—racial. Since racial preferences disproportionately target wealthier minorities, they do not give rise to as much socioeconomic diversity as they may at first seem to.

The last significant issue of the current program that this article will address is that it fails to acknowledge disadvantages that whites and Asians might face. This point proves to be particularly devastating to the fairness argument put forth by affirmative action proponents. Racial preferences were instated ostensibly to rectify past and current discrimination against minorities in the name of “fairness.” But Chinese Americans also experienced oppressive discrimination in the form of the Chinese Exclusion Act of 1882, which prohibited Chinese laborers from immigrating to the United States.[14] Following Pearl Harbor, Franklin Roosevelt issued an executive order permitting the incarceration of any person of Japanese ancestry from the west coast, 62 percent of whom were United States citizens.[15] While instances of racial discrimination are unique and perhaps incomparable, proponents of racial preferences in the name of fairness must also consider experiences of discrimination for people of all racial identities.

It seems that preferences for Asian Americans, for example, do not exist because Asian Americans, on average, perform extremely well academically. According to the U.S. Department of Education, Asians attained an average GPA of 3.26 in 2009, higher than that of all other demographics listed.[16] A Princeton study reveals that Asian Americans are penalized 50 points on the SAT in admissions.[17] Clearly, racial preferences are not based on rectifying past discrimination for all historically disadvantaged groups. It is true that these groups did not experience the same kinds of discrimination as underrepresented minorities, but according to the fairness arguments’ logic, these students should surely not be penalized. The dichotomy between affirmative action’s treatment of Asians compared to that of underrepresented minorities demonstrates that its objective is not to attempt at rectification for past injustice, but rather to guarantee some sort of representation on campuses. The current program’s fundamental goal is to promote racial diversity on campus, regardless of whether that diversity is accurately representative of discrimination or disadvantage. In a sense, giving Chinese or Japanese applicants groups a boost through affirmative action would rectify past discrimination, but doing so would also result in majority Asian colleges in many cases. This disregard for groups that have also faced discrimination makes colleges look as though they peddle the fairness argument in order to support their own agendas. As a result, low-income whites and Asians receive no admissions benefits, despite their own demonstrable disadvantages. A system which professes to pursue fairness ought to account for them as well, or abolish that sort of rhetoric altogether. If fairness is dismissed as an end of affirmative action, then diversity becomes the main premise of racial preferences. But this ought to include all forms of diversity, not just racial. Our current system does not achieve the levels of socioeconomic diversity that it could, and thereby alienates an enormous portion of the college-aged population. The following proposal, outlined in section III, not only rectifies this problem, but also increases racial diversity more effectively and in a less controversial manner than the current system does.


3. A New Affirmative Action

Proponents of the status quo worry that eliminating racial preferences would send minority admissions into precipitous decline. After Proposition 209 took effect in 1998, thereby prohibiting public educational institutions from considering race in admissions, minority enrollment at the University of California system dropped significantly from 1997 figures. Black, Chicano, and Latino admissions rates dropped by 12.5, 9.8, and 5.8 percent, respectively. These reductions were even more drastic at UC Berkeley, where the drops in admissions rates were 59.1, 60.3, and 24.5 percent. Clearly, colleges should not abandon the current program without an adequate replacement that prevents this decline in minority admission rates.[18]

The University of Colorado Boulder designed a unique approach to affirmative action. The university’s approach evaluates applicants’ grades and test scores in relation to expectations, given their socioeconomic conditions. This structure employs a “disadvantage index” to measure the likelihood that the applicant will enroll in college at all, as well as an “overachievement index” to measure whether an applicant’s qualifications surpass expectations for students in similar socioeconomic situations.[19] Public universities could design such indices to account for income bracket and low-income school districts among other economic considerations. They could also take familial situations into account, such as single parent household status, first generation status, or the incarceration or death of a family member.

The university performed an experiment with 2,000 borderline applications. Half were evaluated using the disadvantage method, and half using race alone. The results were overwhelmingly beneficial for poor students—the new approach increased acceptance rates among the poorest students by 13 percent. Most notably, taking race and class into account increased underrepresented minority admissions by 17 percentage points. Lowest-income minorities saw the most benefit, with a 32 percent admissions rate increase.[20] While this approach uses race directly as an admissions factor, it demonstrates that taking class into account can also increase minority admissions.

In theory, this sort of system is perfect. It accounts for all pertinent forms of disadvantage befalling applicants, including racial discrimination, while eschewing catch-all policies which benefit specific demographics in inconsistent manners, such as racial preferences. If an applicant is severely hindered by demonstrable racial discrimination, such concerns can be factored into the indices. Schools could tailor their indices to the specific challenges addressing their institutions and local communities, possibly including factors not included in Boulder’s index. Of course, the issues with this proposal present themselves in the details. How could an admissions officer possibly quantify the many different kinds of discrimination? Or determine what impactful life events or circumstances are more debilitating than others? Some might argue that these questions are impossible to answer. Critics are right to question the validity of a system that attempts to quantify such qualitative issues. However, statistically based indices likely will prove more accurate in identifying disadvantage than the current program. While the index calculus could never be perfect, it would prevent admissions from overlooking truly disadvantaged applicants of any race. The new system considers all kinds of disadvantages faced by all kinds of applicants.



[1] Feinberg, Walter. “Affirmative Action.” Oxford Handbooks – Scholarly Research Reviews. The Oxford Handbook of Practical Ethics, 14 Apr. 2015. Web. 19 Feb. 2017.

[2] Fisher v. University of Texas. Supreme Court of the United States. 23 June 2016. Supreme Court of the United States. Web. 19 Feb. 2017.

[3] Exec. Order No. 10925, 3 C.F.R. (1961). Print.

[4] Bertrand, Marianne, and Sendhil Mullainathan. “Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination.” SSRN Electronic Journal (n.d.): n. pag. 18 Nov. 2002. Web. 19 Feb. 2017.

[5] “What Is Housing Discrimination?” The Leadership Conference on Civil and Human Rights. The Leadership Conference, n.d. Web. 19 Feb. 2017.

[6] Liptak, Adam. “Supreme Court Upholds Affirmative Action Program at University of Texas. “The New York Times. The New York Times, 23 June 2016. Web. 19 Feb. 2017.

[7] Lin, Ann, and David Harris. “Policy Brief #16.” National Poverty Center. National Poverty Center, Jan. 2009. Web. 19 Feb. 2017.

[8] Caprio, Sonia, Stephen R. Daniels, Adam Drewnowski, Francine R. Kaufman, Lawrence A. Palinkas, Arlan L. Rosenbloom, Jeffrey B. Schwimmer, and M. Sue Kirkman. “Influence of Race, Ethnicity, and Culture on Childhood Obesity: Implications for Prevention and Treatment.” Obesity 16.12 (2008): 2566-577. Web. 19 Feb. 2017.

[9] Nomaguchi, Kei, and Amanda N. House. “Racial-Ethnic Disparities in Maternal Parenting Stress.” Journal of Health and Social Behavior 54.3 (2013): 386-404. Web. 19 Feb. 2017.

[10] Rosentiel, Tom. “Public Backs Affirmative Action, But Not Minority Preferences.” Pew Research Center. Pew Research Center, 01 June 2009. Web. 19 Feb. 2017.

[11] Cashin, Sheryll. Place, Not Race: A New Vision of Opportunity in America. Boston: Beacon, 2015. Print.

[12] Balakrishna, Aditi. “Many Blacks at Ivies Not From U.S.” The Harvard Crimson. The Harvard Crimson, 9 Mar. 2007. Web. 20 Feb. 2017.

[13] “Most Black Students at Harvard Are From High-Income Families.” Journal for Blacks in Higher Education. Journal for Blacks in Higher Education, n.d. Web. 20 Feb. 2017.

[14] “Chinese Exclusion Act.” Wikipedia. Wikimedia Foundation, n.d. Web. 19 Feb. 2017.

[15] “Executive Order 9066.” Wikipedia. Wikimedia Foundation, n.d. Web. 19 Feb. 2017.

[16] “Race/Ethnicity: Grade Point Average.” The Nation’s Report Card. The National Assessment of Educational Progress, n.d. Web. 19 Feb. 2017.

[17] Shyong, Frank. “For Asian Americans, a Changing Landscape on College Admissions.” Los Angeles Times. Los Angeles Times, 21 Feb. 2015. Web. 19 Feb. 2017.

[18] University of California Office of the President. “University of California, Application, Admissions and Enrollment of California Resident Freshman for Fall 1995 through 2014.” University of California, n.d. Web. 5 Mar. 2017.

[19] Jaschik, Scott. “Study Suggests Class-based Affirmative Action Could Increase Racial Diversity.” Inside Higher Ed. Inside Higher Ed, 15 May 2013. Web. 19 Feb. 2017.

[20] Quinton, Sophie. “What If Colleges Embraced Affirmative Action for Class Instead of Race?” The Atlantic. Atlantic Media Company, 21 Oct. 2013. Web. 19 Feb. 2017.

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