A new Supreme Court ruling in the US has declared race-based affirmative action in university admissions to be unconstitutional.
For good or ill, the conservative juggernaut that is the 6-3 majority on the US Supreme Court is cutting a swathe through left-wing legal precedent.
A pair of decisions last Thursday struck down race-based affirmative action in university admissions. Taking race into account in deciding whether or not to admit students was unconstitutional, the court ruled, with a 6-3 split decision in one case, and 6-2 in the other because a left-leaning justice had to be recused.
This makes the US now an interesting case study for those, like the Institute of Race Relations (IRR) and the Daily Friend (including yours truly), who stand in strong opposition to the South African government’s efforts to impose what are essentially race quotas in employment.
The IRR has also promoted a policy of Economic Empowerment for the Disadvantaged, to replace race-based empowerment laws in South Africa.
The two US Supreme Court rulings overturn several precedents set as long ago as 1978 that held universities (confusingly called ‘colleges’ in the US even when they have ‘university’ in their name) could not implement strict racial quotas, but could take race into account in deciding upon admissions, in pursuit of a more diverse student body.
Sunset
Interestingly, in 2003, conservative Justice Sandra Day O’Connor expressed the expectation ‘that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today’.
Her anticipation of a sunset for race-based affirmative action came five years early.
Some individual states have long banned affirmative action at universities. The most notable of these is California. Its residents in 1996, under a Republican governor, voted against affirmative action. In 2020, they shocked the Democratic Party elite by voting against a proposition to repeal the 1996 law by a margin of over 57%.
Other states where affirmative action has been outlawed in college admissions include Texas, Oklahoma, Arizona, Florida, Nebraska, Michigan, New Hampshire and, surprisingly, Washington State. These represent in total about 25% of the US student population.
Now, race-based affirmative action will be banned nationwide, thereby over-ruling the 41 states where it was both legal and common practice.
Justice Sonia Sotomayor, a dissenting judge of Hispanic descent, wrote that the latest decision ‘rolls back decades of precedent and momentous progress.’
Another dissenting judge, Justice Ketanji Brown Jackson, a black woman, wrote that it was ‘truly a tragedy for us all’.
Justice Clarence Thomas, the only other non-white judge on the court, disagreed with them. A long-standing opponent of race-based affirmative action, he wrote that the decision ‘sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes’.
Critics
Affirmative action in the US has increased diversity in its universities, but it has many critics.
Strong preferences in admissions can negatively affect student outcomes, finds UCLA law professor Richard H. Sander. In law schools, for example, they ‘nearly double’ the bar failure rate among black graduates.
More pertinently, he writes, ‘there is abundant evidence that upper-middle class minorities have made dramatic gains over the past fifty years, and experience genuine access to mainstream American institutions. There are still significant problems for these groups – most of them related to continuing high levels of racial housing segregation and the persistent test-score gap – but in most ways the landscape has been transformed since 1960. This is not so for low-[socio-economic stratum] households of all races.’
This is exactly what we have seen in South Africa: racial preferencing, be it in employment, academic admissions or corporate equity participation, has created a substantial black middle-class and has greatly benefited a fairly small elite. It has made little or no difference, however, to the vast majority of poor, under-educated or unemployed masses.
Adversity score
The consequence, in the US, has been the slow rise of income-based affirmative action.
The medical school at the University of California in Davis, for example, which hasn’t been able to consider race in admissions since 1996, calculates a socio-economic disadvantage scale, also known as an adversity score, for each applicant (soft-paywalled link).
Combined with a full battery of grades, test scores, recommendations, essays and interviews, this score has made UC Davis one of the most diverse medical schools in the US.
President Joe Biden, who deplored the Supreme Court ruling, has called such adversity scores a ‘new standard’ for achieving diversity.
This is not a panacea, of course. For much the same reasons that race-based affirmative action could have harmful outcomes for students, adversity-based affirmative action is not guaranteed to have good outcomes, either.
After all, if a socio-economically disadvantaged student has a less secure academic grounding for university, their likelihood of success is also lower than those of students from affluent backgrounds and elite schools.
It is well documented that students from lower socio-economic strata struggle more because they lack the social support and development networks to which their middle- and upper-class peers have access.
It will reduce perceptions that some people don’t deserve their positions or degrees, since there will no longer be an obvious marker such as race for any affirmative action a particular student enjoyed.
Financing mechanisms should be generous enough to free students from their poor socio-economic background, while simultaneously being strict enough to act as a strong motivator for students to apply themselves and succeed.
Social mobility
In an ideal world, one shouldn’t need anything other than academic records and interview performance to enter university (or take a job).
But it isn’t an ideal world, and affirmative action does improve social mobility. It gives people born into poverty and disadvantage a path out of it, if they apply themselves and work, probably harder than their more fortunate rivals need to work.
In a country with widespread disadvantage caused by both the present and previous regimes, programmes designed to smooth the way for promising people from poor communities into education or employment could have substantial long-term socio-economic benefits.
If such a programme can work well without relying on inaccurate proxies such as race, then it is the sort of programme we should favour.
South African policy makers should pay attention and learn lessons from how the US moves on from race-based affirmative action to a less crudely discriminatory system.
Affirmative action based on socio-economic stratum alone has the potential to move South Africa one step closer to the non-racial future that classical liberals – and many in the old ANC – have always envisioned.
[Image: Elvert Barnes, https://commons.wikimedia.org/w/index.php?curid=65115897]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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