A pervasive narrative around affirmative action casts colleges as secretive places where administrators deny the most deserving students in order to favor other students of certain races.
This race-obsessed picture of college admissions is what emerges from a 2015 complaint alleging that some Asian-American students were denied admission to Harvard University on the basis of their race. The complaint’s goal is to “require Harvard University to immediately cease and desist from using race in its admissions process.”
The Trump administration is breathing new life into this narrative; the New York Times just reported that the Department of Justice is redirecting resources for this purpose.
{mosads}I am a lawyer who has also been a college admissions officer in a most selective admissions environment, and I want to say something that might be shocking to many: You have benefited from affirmative action.
In most college admissions offices, the job is to assemble a class of interesting, smart, accomplished, and different students who are a fit for the college’s mission. Students who are different learn from each other. I mean different in the broadest sense. Depending upon the college, this can include different ideas, experiences, academic interests, musical abilities, religions, athletic talents, family backgrounds, financial statuses, genders, geographic origins, and races, among other characteristics.
In this way, “merit” is not just a test score, but rather a host of factors that must be weighed together when constructing a class. No student intrinsically deserves admission by some objective standard of perfection. You — the person reading these words right now — likely benefited from affirmative action, whether because you wrote a great essay or grew up on a farm, or simply because you were surrounded by people different from you in myriad ways.
As a result, each and every admitted student is an affirmative action.
Today, we are witnessing the Department of Justice try to impose a narrow vision of merit on our colleges. By doing so, the department will likely harm the quality of education and, in the process, principally benefit the most privileged applicants. At many colleges, there are more students with parents in the top 20 percent of incomes than the percentage of all non-white students combined. The department has the power to cause havoc for colleges, initiating an expensive and controversial investigation, and, in the meantime, withholding federal funds from any college that does not cooperate.
Perhaps worse, the department can divide Americans by giving credence to the falsehood that colleges favor some races over others. This myth is perpetrated in the media, too. Earlier this month, CNN repeated the misconception that affirmative action “aims to eliminate discrimination in the higher education admissions process by recruiting and incentivizing traditionally excluded groups like minority students.” No, it does not. If it did, then it would be unconstitutional.
According to the Supreme Court, there is only one constitutionally permissible reason to consider race in college admissions: to harness the educational benefits that flow from a diverse student body. In 1978, 2003, and 2016, the Supreme Court ruled that affirmative action is constitutional when the policy is narrowly tailored to achieve those educational benefits. In each of those years, the Supreme Court found that the policies at the University of California (the Bakke case), the University of Michigan (the Grutter case), and the University of Texas (the Fisher case) passed muster.
While the Department of Justice cannot overturn the Supreme Court, the department’s misguided campaign may be the catalyst for affirmative action’s return to the court, where affirmative action is at real risk.
Affirmative action survived in 2016 because Justice Scalia’s replacement was not seated at the time of the Fisher ruling. With the confirmation of Justice Gorsuch, the Fisher ruling may have been different; if President Trump has another Supreme Court vacancy, that new justice might overturn the rulings of Bakke, Grutter, and Fisher, just as Justices Roberts, Alito, and Thomas wanted to do in Fisher.
How can colleges protect affirmative action? Highly selective colleges must be practical: Affirmative action in its current form may be living on borrowed time, and colleges can prepare by studying ways to create diversity — including racial diversity — using race-neutral tools that will not trigger the attention of the courts. Socioeconomic status, essays prompts, test-optional policies, and even geography are possible options many colleges already employ. Colleges can reexamine the methods but cannot abandon diversity without compromising all of American higher education.
Merit is more than a test score. Colleges must do better explaining affirmative action to the American people. The essential principle — that the educational experience at our colleges is stronger with a diverse student body — is not only about race. Every one of us has benefited from affirmative action.
Benjamin S. Baum has been a college admissions officer at several institutions and is a lawyer. He holds a BA from Amherst College, a master’s degree from the University of Oxford, and a JD from the University of Michigan. He has previously written on affirmative action for the Journal of College and University Law. The views expressed by the author are his own and not necessarily the views of his employer.
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