Shall We Overcome: What is the Alternative to Affirmative Action? 

Nearly every selective college in the country discriminates on the basis of race in admitting students because the U.S. Supreme Court has allowed it for decades. This month, the Court is expected to revoke that permission slip when it issues opinions in two cases brought by Students for Fair Admissions that challenge affirmative action at Harvard and the University of North Carolina. The good news is there are many other, better ways to support the disadvantaged than using race-based preferences.  

If the Court’s decision prohibits race-explicit affirmative action, some expect organizations to evade the ruling through the use of race-neutral affirmative action. The Fairfax County School Board in Virginia provided an example of this approach when it enacted changes to the admissions process of an elite public high school to intentionally decrease Asian-American enrollment and increase enrollment of students of other races. 

The new admissions process—although strictly race-neutral—had the intended effect. It drastically reduced the admission of Asian-American students within one year from 73% to 54%. However, race-neutral affirmative action of this kind is only—what some would call—a more palatable, watered-down version of race-explicit affirmative action. If the latter is struck down, the former has no legal grounds either. 

If affirmative action is outlawed, it will be necessary to ensure schools are complying with these prohibitions. Lawyers, government officials, school administrators, watchdog organizations and other supporters of equality under the law will need to redouble efforts to protect potential students from illegal discrimination based on their skin color or ethnicity. Yet a dilemma remains. 

Advocates of affirmative action tend to support the practice for its alleged ability to help the downtrodden. Under this view, race-based preferences alleviate the evils done by the undeniable oppression and subjugation of the past. The result of said evils is the widely acknowledged achievement disparities that fall along racial lines. However, supporters and opponents alike are criticized for their shortcomings in closing those gaps. 

For example, opponents of racial preferences charge that affirmative action harms its supposed beneficiaries. Evidence for this claim is documented in studies indicating mismatch effects when students are placed into academic environments for which they are ill-prepared. Those harms manifest in disproportionate drop-out and school transfer rates, taking longer to graduate and overall lower academic performance. This is to say nothing of the documented psychological and stigmatizing harms. This is a too often overlooked tragedy of racial preferences. 

 On the other hand, proponents of affirmative action rightly complain that its detractors seem uninterested in putting forward concrete alternatives to the social and economic advancement of minorities. Moreover, outfits like the once-highly regarded NAACP are criticized for having all but abandoned any serious efforts in this regard. 

Fortunately, universities, philanthropists and others have more effective—and legal—ways to create opportunities for the disadvantaged. And the striking down of racial preferences should serve as a catalyst for even more resources and concrete ideas. For example, my organization joined an amicus brief filed by the Pacific Legal Foundation in the Harvard and UNC cases, where we lay out purely colorblind ways the court can increase opportunity for those in need. 

First, judges should “[un]cup [their] hands over [their] eyes” and respect the right to earn an honest living. Current law makes it exceedingly onerous to challenge state deprivations of the economic liberty of entrepreneurs, small business owners and the like. We also implore the judiciary to recognize threats to property rights and the vital right of parents to choose the best school for their children. These measures would all do more to improve access to opportunity, and upward mobility for the most vulnerable than race preferences in college admissions have done in half a century. Those who are economically or otherwise disadvantaged cannot be expected to thrive and improve their station in life if they must be hyper-focused on mere survival. 

Not contained in the brief but of equal or greater importance is the profound cultural work that needs to be undertaken in earnest within certain communities. The out-of-wedlock birth rate, for example, is astronomical in particular areas of the country and has led to a multigenerational fatherless epidemic. Negative consequences such as higher rates of teen pregnancy, incarceration and poverty all disproportionately affect Black Americans. Solutions that support family and community cohesion should be high on the list of ways to help the disadvantaged. This serious cultural work must also include reestablishing principles that foster good character like “crime doesn’t pay” and “do unto others as you would have them do unto you.”  

Finally, although of paramount importance, we must eliminate across the board the victimhood complex that is discouraging young minorities from persevering and holding them back from realizing their full, unique potential. I propose we launch a mighty effort to replace that mentality with an enthusiasm for, as my hero Frederick Douglass once said of becoming his own master, “the responsibility of [one’s] own existence and the exercise of [one’s] own powers.” 

For those truly concerned about making sure disadvantaged individuals have access to opportunities that will help them change the trajectory of their lives—all is not lost. The question is whether the will and stick-to-itiveness exists to engage in the arduous work of honest, systemic change. If the Supreme Court outlaws racial preferences in college admissions, the only thing that will be different is it will no longer be easy to pretend one is making positive change by holding back some people in order to artificially advance others. 

Devon Westhill is president and general counsel of the Center for Equal Opportunity and a signer of Philanthropy Roundtable’s True Diversity statement of principles. 

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