THE CONSERVATIVE VICTORY IN GRUTTER AND GRATZ
Richard D. Kahlenberg
Senior Fellow
The Century Foundation

Although the U.S. Supreme Court’s recent support for affirmative action at the University of Michigan Law School is universally seen as a victory for the political left, at a more profound level, the decision benefits conservative interests and values far more decisively. In a conventional sense, it is of course true that in Grutter v. Bollinger, the opinion of the most liberal supreme court justices (Ginsburg, Souter and Breyer) prevailed over the most conservative justices (Rehnquist, Scalia and Thomas), but in a deeper sense, conservative interests won out in three important respects.

First, the decision enshrined a very modest racial remedy to inequality of opportunity, reducing the chances that universities will adopt more far-reaching and comprehensive class-based solutions to unequal opportunity in the United States. Second, the decision elevated obfuscation and institutional secrecy over liberal democratic values of openness, candor, and sunshine. Third, the decision moved the fight over affirmative action from the legal realm to the political realm, at least for the next 25 years, which is exactly where conservative political advisors like Karl Rove want it to be.

I. Race as a Proxy for Class

American children face enormous inequalities of opportunity. Some students attend underfunded schools and grow up in broken homes, with mothers who dropped out of high school and make minimum wage, while others enjoy the benefits of growing up in a family where the parents have graduate degrees, and earn large salaries that can purchase high quality private educations. Most fair-minded people would agree that in comparing applicants to a selective college, overcoming obstacles should be weighed, along with the academic record a student has achieved.

Race-based affirmative action would appear to be one way to address these inequalities. In the Michigan undergraduate case, Gratz v. Bollinger, Justice Ginsburg, joined by Justices Souter and Breyer, pointed to data finding that African Americans and Hispanics have higher poverty rates than whites (22.1% and 21.2% vs. 7.5%), and that black and Latino students “are all too often educated in poverty-stricken and underperforming institutions.” The popular press makes this link as well. In a recent political cartoon, Rob Rogers of the Pittsburgh Post-Gazette, depicted an African American girl, who states: “I survived life on welfare and food stamps...In a poor, crime-ridden neighborhood with crumbling schools filled with guns and drugs...In a world that rewards rich white men. So now, affirmative action will help me get into college.” Her white male colleague retorts, “That’s so unfair.”

Clearly, much of the moral authority of affirmative action stems from this notion that students of color are disproportionately poor and working class, and deserve a leg up as a matter of fairness. But in practice, affirmative action in higher education does little to reach these low income and working class minority students. William Bowen and Derek Bok, strong supporters of affirmative action, found that 86% of blacks who enrolled in the 28 selective universities they studied were middle or upper middle class. And race-based programs do nothing to help students from white and Asian families living in poverty (100% of whom are poor) or attending “poverty stricken and underperforming institutions.”

Most universities claim that they “do both” – have active affirmative action programs for minorities and for economically disadvantaged students. In their amicus brief in Michigan cases, Harvard, Princeton, and six other elite universities said they “already give significant favorable consideration” to socioeconomic status. At the same time, Bowen and Bok argue that it is not “realistic” to admit more disadvantaged students than universities already do. “The problem is not that poor but qualified candidates go undiscovered, but that there are simply too few of these candidates in the first place.”

But a recent Century Foundation study conducted by Anthony Carnevale and Stephen Rose questions both the idea that universities now actively recruit low income and working class students and that they would love to admit more if only such qualified students existed. The authors find that 74% of students at the most selective 146 colleges are from the top economic quartile, compared with just 3% from the bottom economic quartile. In other words, you are 25 times as likely to run into a rich student as a poor student on America’s elite campuses. Low income students are as under-represented today as minorities would be if racial affirmative action were eliminated and replaced by a regime of admissions by grades and test scores alone.

If low income students routinely received a break in admissions, as many colleges suggest, we would expect to see them over-represented compared to their academic records. (Racial preferences, for example, boost black and Latino percentages from 4% at the nation’s top 146 colleges under a system of grades and test scores to 12%). In fact, the representation of poor and working class students today is lower, not higher, than if grades and test scores were the sole basis for admissions, the researchers find. The finding tracks with a study of law school admissions, which finds that despite the rhetoric of admissions committees, law schools give no leg up to economically disadvantaged applicants. The University of Michigan undergraduate program provided “up to” 20 points for low socioeconomic status, but a freedom of information request seeking to ascertain the weight and extent of this preference in practice was denied on the basis that the university did not track the data. (By contrast, racial minorities were automatically given a full 20 points and the racial mix was the subject of a daily report.)

There appears to be one major set of exceptions to the rule. Universities which are forbidden from admitting students based on race have moved to actively recruit low income students, as a way of indirectly boosting racial diversity. The University of California, for example, uses “comprehensive review” – examining academic accomplishments in light of such obstacles as “low family income, first generation to attend college,” and “disadvantaged social or educational environment.” The University of Washington looks at academic achievement in the context of such factors as “family income, number in family, parents’ educational level, [and] high school free lunch percent.” The University of Florida’s “Profile Assessment” program provides a leg up to “students who are poor, attend a low performing high school, or whose parents didn’t attend college.” Written into Texas law is the consideration of obstacles such as “the socioeconomic background of the applicant,” “whether the applicant would be the first generation of his or her family to attend or graduate from an institution of higher education,” and “the financial status of the applicant’s school district.” It is interesting to note that the percentage of students receiving Pell grants – a marker of low income – is much higher in California, where the use of race is banned, than in Virginia, where its use continues. According to Donald Heller’s research, U.C. Berkeley has 32.4% of students eligible for Pell Grants, and UCLA has 35.1%, compared to 8.6% at the University of Virginia and 8.0% at William and Mary.

Conceivably, a decision in Grutter striking down the law school program might have resulted in the worst of all worlds: no affirmative action by race or class. But the evidence suggests that universities are, to their enduring credit, deeply committed to racial diversity, and will figure out ways to achieve that end, with or without the explicit use of race. Some critics, in fact, have worried that a ban on racial preferences would open the door to much broader programs that might hurt “academic standards.” Jeffrey Rosen, for example, writing in The New York Times Magazine, argued that “selective universities can’t achieve colorblindness, diversity and high admissions standards and the same time,” and that plans such as those which invite applicants to describe “ways in which they had overcome disadvantages” would compromise quality and invite a “competition of victimhood.”

Properly constructed economic affirmative action programs, however, are not a challenge to meritocracy but a better approximation of it. Evaluating student accomplishments in light of barriers surmounted provides a more accurate picture of their longrun potential and will help identify talented but poor students whose “victimhood” is hardly a figment of their imagination. Carnevale and Rose find that if universities used merit-based admissions combined with economic affirmative action, the representation of those from the bottom economic half would rise from 10% today to 38%, but academic quality would not suffer at all. Indeed, the authors find, graduation rates would actually climb, from 86% today (under a system providing preferences based on race, legacy, athletics and the like) to almost 90%.

Moreover, economic affirmative action will produce a healthy amount of racial diversity. At the top universities, Carnevale and Rose find that a race-blind economic affirmative action program would boost African American and Latino admissions from 4% (under a system of grades and test scores) to 10%, which is somewhat below the current 12% representation. This finding was based on the researchers’ definition of economic disadvantage examining parents’ income, education, and occupation and whether the student attended a high school with a high percentage of students eligible for free and reduced price lunch. But there are other factors which should, in fairness, be considered, and which would likely boost the “racial dividend” of economic affirmative action.

One factor is neighborhood. Studies find that growing up in a neighborhood with concentrated poverty imposes an extra burden on students and that Blacks and Latinos are more likely to live in such neighborhoods than whites of similar income. In fact, one recent study found that black families with incomes in excess of $60,000 live in neighborhoods with higher poverty rates than white families earning less than $30,000. Others have noted that middle class blacks are generally newer arrivals to the middle income status than middle class whites, and that even among whites and blacks of similar income, blacks and fewer financial assets. While black median income is 62% of white income, black median net worth is just 12% of white net worth. Whereas income reflects a snapshot in time, wealth measures the accumulation of income (or debt) over generations, and captures the legacy of slavery and segregation.

Counting these additional factors – net worth and neighborhood concentrations of poverty – should boost racial diversity beyond the 10% figure that the more limited definition of economically disadvantage yields. At UCLA Law School, for example, under a socioeconomic program counting wealth and single parent family status alongside other traditional socioeconomic factors, in the fall 2002 entering class, African Americans were 11.4 times as likely to be admitted under the socioeconomic program as other programs, and Latinos were 5.6 times as likely to be admitted.

In a stunning omission, Justice O’Connor did not even discuss economic affirmative action as a possible race-neutral alternative in the Grutter case. She dismissed two easily disposable ideas: lottery admissions, which clearly do compromise academic standards, and the “percentage plans” admitting top students in every high school, which don’t apply to graduate and professional schools. The economic alternative, which cannot be so easily dismissed on either ground, was simply ignored by her opinion.

Colleges surely cheered that omission, for applying a program to give a leg up to poor and working class students of all races is far more expensive than one focused on admitting a small number of mostly middle and upper-middle class students of color. O’Connor gave universities a free pass, declaring: “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” This extraordinary deference and assumption of good faith ignores the very strong financial interest universities have in being less than candid about the efficacy of economic affirmative action.

A decision outlawing the use of race might have caused universities to fundamentally re-examine the fairness of their admissions systems. As Justice Thomas noted acerbically in his dissent, such a decision might have put pressure on universities to drop legacy preferences “a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case.” Instead, the Court’s decision will help keep the higher education community focused on the narrow (and more manageable) issue of racial representation, deferring the more ambitious (and messier) question of economic representation.

It is not surprising that O’Connor’s opinion contains favorable citations about the Michigan Law School’s plan from 3M, General Motors, and the U.S. Military. Big business is interested in diversity to reach minority markets, and the military is interested diversity to maintain authority over enlisted troops. These interests are fine, though they have little to do with the original goals of the civil rights movement and affirmative action – to promote justice for those wrongly excluded and to move the country toward genuine equal opportunity.

The conclusion of the majority’s opinion in Grutter contains a small ray of hope for supporters of the broader economic approach to affirmative action. The Court declares that universities must engage in “periodic reviews to determine whether racial preferences are necessary to achieve student body diversity.” The opinion then points to universities in California, Florida and Washington which are “engaged in experiments with a wide variety of alternative approaches.” As the evidence on the efficacy of class-based alternatives grows, lower courts may choose to enforce this requirement, opening the door to a more robust form of affirmative action over time.

II. Obfuscation over Openness

The second liberal principle undercut by Grutter – in combination with the undergraduate Gratz case – is the principle of openness and transparency in a democratic society. The distinction between the undergraduate point system that was struck down by the Court, and the law schools’ plan seeking a “critical mass” of minority students that was sustained by the Court, has been widely ridiculed. As John Skrentny notes, “a university cannot be mathematical and mechanical about giving a weighted advantage to the applications of African Americans or Latinos, but it can be mathematical when monitoring the overall mix of minorities on campus.” Even though the distinction is now the law of the land, it is worth remembering that only two of nine justices (O’Connor and Breyer) said it mattered to them in Gratz and Grutter, just as only one justice (Powell) saw a relevant distinction in Bakke.

But the distinction is not merely illogical, it is fundamentally antidemocratic. Citizens in a self-governing society are supposed to be able to judge whether or not they support public policies, so it seems peculiar for the Court to encourage public institutions to be evasive about the weight being applied to race. Liberals should be especially offended by the secrecy encouraged by the decisions, and many are. The left has been at the forefront of the fight for freedom of information and openness in government decisionmaking. In the Bakke decision, it was the four liberal justices – Marshall, Brennan, Blackmun and White – who emphasized that Powell’s distinction between Harvard’s “plus factor” plan and U.C. Davis’s stated quota was meaningless. Likewise, in Gratz, Justice Souter said of the undergraduate scheme: “it seems especially unfair to treat the candor of the admissions plan as an Achilles’ heel...I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.” Justice Ginsburg, in a similar vein, said, “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Liberal commentator Michael Kinsley said O’Connor’s distinction was “laughable,” charging “confusion seems to be a purposeful strategy.”

For the same reason both Ginsburg and Souter attacked the Bush-backed percentage plans for admissions as a clumsy way of getting a desired racial result by covert means. The same charge does not stick when lodged against economic affirmative action programs. True, many of the beneficiaries of economic plans are minority students, and racial diversity is an important result of the program. But it is wrong to think of students of color as a monolith. Under the economic plan, the minority students benefitting are those most deserving of a preference – those who have overcome obstacles and done quite well. These are not, on the whole, the same set of minority students who benefit from affirmative action today.

III. From the Legal to the Political Realm

The U.S. Supreme Court’s decision in Grutter will not end the national debate over affirmative action policies any more than the Bakke decision did 25 years ago. Though some commentators said the court’s decision to “split the difference” in Grutter and Gratz reflected general public opinion on the policy, in fact polls consistently find that racial considerations of the type used by the law school (boosting minority admissions from 4% to 14.4%) are opposed by a strong majority of Americans. Because the Court held that racial affirmative action merely legal, not required, political interests are likely to tap into the widespread opposition to such programs.

In recent years, conservative opponents of affirmative action have focused their firepower primarily on the legal battle rather than the political one. Since the passage of voter initiatives curtailing affirmative action in California in 1996 and Washington in 1998, conservatives have spent most of their resources on the Michigan cases. This strategy was understandable. While ballot initiatives are state by state efforts, and only affect public colleges, a decision in Gratz and Grutter might have knocked out race-sensitive admissions in public and private universities nationally in one fell swoop.

Now, with the Supreme Court decision, the issue moves back to the political realm. Already, Ward Connerly, the author of the anti-affirmative action initiatives in California and Washington, has vowed to take his fight to voters in Michigan and elsewhere. Republican political advisors are not shedding any tears about the Court’s decision to keep the issue of affirmative action alive as a political issue for the next 25 years.

True, the politics of affirmative action can be complicated. Republicans want to appeal to Latino voters, who benefit from preference programs. And Republicans in Michigan are worried that an affirmative action initiative might boost black voter turnout in the 2004 general election. But the fundamental rule of American politics over the past several decades has been that when the swing group, white working class people, votes their race, Republicans win; when they vote their class, Democrats win. Affirmative action, more than any other issue, encourages these constituents to think, and vote, racially.

It is not that the American electorate is reactionary. While Americans don’t like preferences based on race, they do want diversity, and they are willing to give a leg up to economically disadvantaged students, many of whom are members of minority groups. Three recent polls from January and February, 2003 are illustrative. A Los Angeles Times survey found that by 56%-26%, Americans agreed with President Bush’s opposition to the University of Michigan’s racial preference plan. (Even Democrats narrowly supported Bush.) A Newsweek poll found Americans opposed preferences for blacks in university admissions by 68%-26%. And an EPIC/MRA poll found Americans oppose the University of Michigan’s affirmative action plan 63%-27%. By contrast, Americans in these same polls supported preferences for low income or economically disadvantaged students of all races by 65%-28% (Newsweek), 59%-31% (LA Times), and 57%-36% (EPIC/MRA).

For the next quarter of a century, it seems, progressives will need to explain precisely why they think it is more fair to provide a leg up to middle and upper-middle class students of color rather than to poor blacks, Latinos, Asians, and whites. Creating a black and Latino inter-generational aristocracy along side a white and Asian inter-generational aristocracy is certainly a step in the right direction. It is far better that the top economic quartile which produces the next generation’s elite be racially integrated than not. But what about going beyond that – and ensuring that bright and hardworking low income and working class students from all racial groups have a shot at the American dream?

September 5, 2003