Snatching Victory from the Jaws of Defeat: The Supreme Court and the Future of Affirmative Action

Published on ZNet,, 6/23/03

In 1980, the Boomtown Rats scored a hit with their song, “I Don’t Like Mondays,” in which they told the true story of a young woman who had shot up her San Diego school, and when asked why she had done it, gave the response enshrined in the song’s title.

For the last few weeks, I’ve been thinking about that song a lot; dreading the coming of Mondays, because I knew that on some Monday before the end of June, the Supreme Court would issue its decision in the two affirmative action cases from the University of Michigan. In so doing, they could easily set back efforts to rectify a history of unequal educational opportunity, and to promote truly equal access to the nation’s colleges.

It was a great relief then to read the recently released decisions from the Court, which, although something of a mixed bag for supporters of affirmative action, nonetheless must be considered a victory within the current political climate. Despite the efforts of the Bush Administration, and the clamoring of conservative talk-show hosts and think tanks, the Court, in a 5-4 vote, upheld the Law School’s affirmative action efforts, saying that the attempt by the school to enroll a “critical mass” of students of color was perfectly legitimate, and did not amount to a violation of white students’ equal protection rights.

On the other hand, the Court struck down Michigan’s undergraduate policy, which also sought to enroll a critical mass of students of color, but did so by establishing a point-system, whereby “underrepresented minorities” (which at Michigan meant blacks, Latinos and American Indians) would receive 20 extra points, on a 150-point scale, similar to the 20 points offered to all low-income students (including white ones), and the 16 points offered to students from Michigan’s mostly-white Upper Peninsula, among others.

Although I have defended the Michigan point system elsewhere, I was not surprised to see it invalidated by the Court. Yes, the points for students of color paled in comparison to those available mostly to whites (such as points for AP courses, having attended “highly competitive” high schools, having a parent who attended the University, and the Upper Peninsula points referenced previously); nonetheless, this Court was always likely to view the point system as an indirect quota, while conveniently ignoring the overwhelming whiteness of the other preferences.

Although this part of the ruling could be seen as a defeat, supporters of affirmative action should see it less as a setback than as a new opportunity to promote racial equity. First, the only schools impacted by the undergrad ruling should be large, highly selective state institutions, for they are typically the only ones who occasionally resort to point systems to boost enrollment of students of color. Smaller schools and private institutions rarely go this route, preferring a more individualized method of evaluation. For those other types of schools, there should be no worry that their current efforts are now going to be challenged, as they more likely mirror the Michigan Law School’s policy, rather than the undergrad system.

As for large schools that do use point systems, as much as I support them, these types of instruments were always about institutional laziness. After all, when a school gets 25,000 applications for only 5,000 slots, they seek to make their jobs easier in terms of paring down the possible pool of admittees. Since they don’t have enough admissions officers to intensely examine each applicant, and learn important things about them, like what kinds of barriers and obstacles they had to overcome to attain a decent GPA and SAT score, they devise things like point systems, which assume that any person from an underrepresented group likely has overcome race and possibly class bias, and thus should receive a preference.

Don’t get me wrong, I happen to think this is a very fair assumption — and certainly more reasonable than its opposite, which is that everyone has had equal opportunity and thus should be evaluated identically — but nonetheless, having an explicit numerical value assigned to minority status has always been more about making life easier for the school, than making opportunity broader for such students.

After all, if these schools were properly training their admissions staff as to the vagaries of institutional inequity in our nation’s K-12 educational system, which is effected by bias in housing markets, they wouldn’t need point systems to boost opportunities for students of color. Properly trained, these officers would be able to evaluate applicants more holistically, and consider what it means for a black or Latino or Indian student to achieve, let’s say, an 1100 on the SAT, while the white median at a given school might be 150 points higher.

As several studies have indicated, students of color typically underperform whites on standardized tests even when their grades and academic abilities are equal to or better than those of their white counterparts. Black students, for example, with identical grades at identical schools, having taken the same coursework as whites, will generally score well below white students on standardized tests. The reasons for this are myriad, from cultural test biases, to what researchers have termed “stereotype threat,” which refers to the fear that persons from socially-stigmatized groups often experience when taking a test that they know will be viewed by the dominant culture as indicative of their intelligence. As Claude Steele (chair of the Psychology Department at Stanford) and others have proven in experimental settings, when students fear that doing badly may confirm, in some people’s minds, their group’s “lesser abilities,” such students (including people of color, as well as girls and young women taking tests of math, where they face negative stereotypes about their abilities compared to boys and young men), may do poorly thanks to the additional stress that they, but not the typical white male student, would feel.

Now that colleges will be unable to use point systems to boost the admissions chances of qualified students of color — and indeed the plaintiffs in the Michigan case never denied that those black and brown students admitted ahead of certain whites had been fully qualified — perhaps they will get down to the more important business of training their staffs to understand how racism, stereotypes and prior opportunity skew on-paper credentials, thereby distorting the apparent “qualifications” of applicants to selective schools. Indeed, if such training is provided at each and every institution on an ongoing basis, it would be possible to achieve the same results as with a point system, while avoiding any possible legal challenges from the right.

For example, if admissions officers were taught to understand the way that stereotype threat has been documented to drive down the SAT scores of highly qualified students of color, they would be able to consider that as they evaluate such students. If they were trained as to the racist impact of so-called ability tracking in primary and secondary schools, whereby black and Latino students, and all low-income students are far more likely to be placed in remedial classes and far less likely to be placed in honors and AP classes, even when their previous grades and scores would justify being tracked high, then they could implicitly adjust for this fact as they evaluated the academic performance of certain applicants.

If they were trained to recognize merit and qualifications as contextual and relative terms — in other words, people must be evaluated based on how much they have accomplished relative to where they started — then they could easily justify the admission of large numbers of students of color who have shown amazing potential and academic drive, even though they might not have done as well on some supposedly “objective” indicator of ability.

After all, our educational system is much like a relay race. Certain runners have had a significant head start, and others have been held back through no fault of their own. Surely no one would think it fair to expect the runner who started out four laps behind in an 8-leg race to hit the finish tape ahead of someone who started out with such a huge lead. Nor should we refuse to acknowledge that the student who started out behind but closed the gap dramatically with their more favored counterparts, might actually be the better “runner,” or in this case student.

In other words, now comes the hard but far more important part: the part where schools are challenged to really consider the effects of racism on the quality of education received by the students applying to their institutions; effects both for people of color, who will often come to them appearing less qualified, and for whites, who may seem more so, even when neither assumption is true.

How many admissions officers, after all, realize just how miserable the SAT is at predicting likely success in college? According to a battery of studies, the SAT can predict, at best, perhaps 16 percent of the difference between any two students in terms of their freshman grades and has virtually no independent relationship to overall 4-year grades or graduation rates. How many admissions officers realize that even at highly-selective schools, students who score as low as 1000-1099 on the SAT (well below the median at such colleges) have an 85 percent chance of graduating, on average: roughly the same as their higher scoring counterparts?

How many admissions officers know that black college graduation rates are identical to white rates once family economic status is controlled for? In other words, if blacks tend to graduate at a lower rate than their white counterparts, this has nothing to do with ability, as measured by test scores, but rather, is a function of their family’s economic ability to pay for college (which schools can ameliorate via financial aid offers), among other non-merit factors.

Bottom line: today’s Supreme Court ruling has validated not only the notion that campus diversity is a positive good in its own right, but the underlying premise of all affirmative action efforts: namely, that not everyone has had the same opportunity to obtain certain outcomes, like a high test score, or a high G.P.A in challenging advanced classes (since the latter are one-third as likely to even be offered at schools serving mostly kids of color).

As such, it is appropriate for colleges to consider these kinds of factors and to offer “preferences” on that basis: not racial preferences, but rather “racism preferences,” rooted in an understanding of how racism operates and skews opportunity. If colleges and Universities will remember that basic premise, and see to it that their admissions officers know it like the back of their hands, affirmative action can become more effective than it ever was before, without extra points. Even more importantly, if done in this way, there wouldn’t be anything that the conservative right could do about it.

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