A New Path to Diversity

A New Path to Diversity

The Supreme Court is poised to overturn race-based affirmative action. But preferences based on socioeconomic disadvantage—which are both politically popular and legally sound—could produce similarly high levels of diversity.

People rally in support of affirmative action as arguments start at the Supreme Court on Monday, Oct 31, 2022. (Jabin Botsford/The Washington Post via Getty Images)

The impulse behind racial affirmative-action programs comes from a very good place: the desire to provide extra support to Black, Hispanic, and Native American people—groups that have been oppressed throughout American history. But it appears that these programs will soon be outlawed. The U.S. Supreme Court seems poised to jettison racial preferences following oral arguments in October in cases challenging the admissions processes at Harvard and the University of North Carolina. And regardless of their legal status, these programs are unpopular. Three-quarters of Americans—including 59 percent of African Americans—oppose using race as a factor in college admissions.

The good news is that there is a politically popular and legally sound alternative that can produce high levels of racial and economic diversity: preferences based on socioeconomic disadvantage. While the U.S. Supreme Court has long been wary of government policies that treat people differently on the basis of race, the modern Court does not have this sort of hesitation about programs that treat citizens differently on the basis of economic status—from the progressive income tax to means-tested programs like food stamps.

Prominent left and liberal voices in the 1960s and ’70s, such as Martin Luther King Jr. and Supreme Court Justice William O. Douglas, advocated for this sort of approach, arguing that affirmative action based on class disadvantage could help address the legacy of slavery and segregation. Recent research finds that although preferences based on income alone are unlikely to produce sufficient racial diversity at selective colleges, the consideration of additional factors, such as family wealth and neighborhood poverty levels, can lead to high levels of both racial and economic diversity.

In the years surrounding the passage of the 1964 Civil Rights Act, which outlawed racial discrimination in education, employment, and public accommodations, civil rights leaders vigorously debated the question of how to address the terrible legacy of the nation’s mistreatment of Black people over centuries.

Some, such as James Farmer, co-founder of the Congress on Racial Equality, argued in favor of a system of racial quotas in employment. Whitney Young of the National Urban League likewise called for “a decade of discrimination” in favor of Black people. Others, including King, suggested a different path. In his 1964 book Why We Can’t Wait, King wrote that America owed its Black citizens some form of compensation for the way they’d been treated. “The ancient common law has always provided a remedy for the appropriation of the labor of one human being by another. This law should be made to apply for American Negroes,” he argued. His proposed solution, however, was a Bill of Rights for the Disadvantaged that would apply to people of all races.

King outlined three rationales for this approach. First, he argued that, because of the history of slavery and segregation, a Bill of Rights for the Disadvantaged would disproportionately benefit Black people and thereby serve as a remedy for past discrimination. Second, King recognized that disadvantaged Americans of all races faced not only discrimination but also deprivation, a condition that itself required a remedy. “It is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten white poor,” he wrote. Third, King knew that the issue of racial preferences would divide the coalition of civil rights groups and organized labor behind the 1963 March on Washington. As he wrote to an editor of Why We Can’t Wait: “It is my opinion that many white workers whose economic condition is not too far removed from the economic condition of his black brother, will find it difficult to accept a ‘Negro Bill of Rights,’ which seeks to give special consideration to the Negro in the context of unemployment, joblessness, etc. and does not take into sufficient account their plight.”

A similar face-off between race-based and class-based affirmative action arose in the legal arena in the 1970s. On one side was Justice William O. Douglas, who grew up the son of a struggling single mother and went on to underscore the problem of class inequality in virtually all of his jurisprudence. In 1974, when a white applicant to the University of Washington School of Law, Marco DeFunis, challenged the school’s racial preference program, Douglas, the Court’s most liberal justice at the time, suggested that class was a better basis for affirmative action than race. In a dissenting opinion in DeFunis v. Odegaard, Douglas wrote that race per se should not be considered, but a “black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard.”

In the DeFunis case, a majority of the Supreme Court ruled that the issue was moot because DeFunis was already nearly finished with law school. The justices would not weigh in on the legality of affirmative action until four years later, after Douglas had retired. In Regents of the University of California v. Bakke (1978), four justices including Thurgood Marshall supported racial quotas at the University of California Davis Medical School as a remedy for historic discrimination, but Justice Lewis Powell Jr., holding the decisive swing vote, set down a different middle path.

Powell, a Richard Nixon appointee who served as a lawyer for Philip Morris and worked closely with the U.S. Chamber of Commerce, looked at the issue from the university’s perspective. A university could use race as a factor in admissions, he ruled, but only in order to achieve the educational benefits that flow from having a diverse student body. Powell suggested, in essence, that racial preferences were justified not because they served as compensation for historical oppression but because the presence of more Black students on campus would improve the educational experience of their mostly white classmates.

Today, with the Supreme Court on the verge of banning the use of race as a factor in college admissions, universities that wish to pursue racial diversity will need to come up with new approaches. Could a class-based approach produce sufficient levels of racial diversity on campus (along Powell’s line of thinking) and simultaneously serve as an indirect form of compensation for past discrimination (along King’s way of thinking)? The answer is yes—but only if universities take into account an array of socioeconomic factors that capture how racial inequality shapes economic opportunity in the United States.

If universities look only at family income, they will fail to recognize important ways in which Black and white families of the same income level often differ dramatically in their economic position. Because of racial discrimination in the housing market, for instance, low-income white children are much more likely to live in a middle-class neighborhood than Black children of the same income level. Astonishingly, middle-class Black families live in neighborhoods with higher poverty rates than low-income white families do. Researchers Raj Chetty and Nathaniel Hendren have found that neighborhood poverty levels can exert a profound influence on a child’s opportunities and outcomes, so any fair admissions process should consider a student’s academic record in light of their neighborhood environment. Fortunately, the College Board recently introduced a tool that allows admissions officers to do just that.

Likewise, although white households earn an average of 1.6 times as much as Black households, white median household wealth is eight times as high as Black median household wealth. Wealth is an important indicator of opportunity in the United States, and colleges have access to wealth data via the FAFSA and the College Board’s CSS Profile, which many selective colleges use in awarding their own financial aid. (The CSS Profile includes questions about a family’s equity in its home or small business, information which cannot be gleaned from the FAFSA.)

I served as an expert witness in support of this type of nuanced, class-based affirmative action in lawsuits brought against Harvard and the University of North Carolina by the group Students for Fair Admissions. I testified in federal district court that racial diversity is very important to have on campus, but that in most cases it can be achieved through race-neutral strategies, such as providing socioeconomic preferences. I testified in support of using race as a last resort in rare cases where a university for some reason cannot achieve sufficient racial diversity through race-neutral alternatives.

In the litigation, Duke economist Peter Arcidiacono and I calculated what would happen if Harvard and UNC ended racial preferences and, jettisoned preferences for the children of faculty and alumni—which tend to benefit wealthy white applicants—and instead gave a meaningful bump in admissions to economically disadvantaged students. As expected, taking neighborhood disadvantage into account boosted racial diversity more than just zeroing in on family income and education levels.

The simulations showed that even without looking at family wealth (Harvard and UNC did not provide wealth data to us), the universities could produce levels of racial and ethnic diversity comparable to those they’d achieved with race-based preferences—and they would reach much higher levels of socioeconomic diversity. At Harvard, for example, the share of African American, Hispanic, and other underrepresented minority students in the admitted class would rise from 28 percent to 30 percent. And the share of first-generation college students would more than triple, going from 7 percent to 25 percent.

Colleges fiercely resist the class-based approach to creating racial diversity, however, because the current system of racial and legacy preferences, which mostly benefits well-off students, is cheaper than providing financial aid for low-income and working-class students. Almost three-quarters of Black, Latino, and Native American students at Harvard are from the top fifth socioeconomically of their respective ethnic or racial groups; in the student body as a whole, upper-income students outnumber those from lower income backgrounds by fifteen to one.

If the Supreme Court prohibits the use of race in admissions, Harvard and other selective colleges have said they are committed to finding alternative ways of producing diversity. To their credit, many selective colleges have made racial diversity central to their missions. When racial preferences were banned in nine states, beginning in 1996 and in most cases by voter referendum, elite public universities in those states didn’t give up on racial diversity. Instead, they sought new ways to create diversity indirectly, such as by ending legacy preferences, providing preferences to economically disadvantaged students of all races, and increasing transfers from community colleges. A 2012 study found that seven of the ten leading universities that employed alternatives to racial preferences were successful in maintaining both Black and Hispanic student representation. Since then, two of the outliers in the 2012 study—UCLA and UC Berkeley—have admitted their most diverse classes in three decades.

Polls find that this sort of class-based affirmative action garners support from almost two-thirds of Americans. And such policies could help the left move beyond the kind of unpopular liberalism that preaches diversity while shunting class to the margins.

The irony is that a conservative Supreme Court decision could provide a boost for progressive multiracial coalition building. Right-wing divide-and-conquer efforts have historically sought to motivate white working-class people to vote their race rather than their class. Moving from race-based to class-based preferences will remind working-class people of all colors what they have in common.

Richard D. Kahlenberg is the author or editor of eighteen books, including The Remedy: Class, Race and Affirmative Action (Basic Books). He is a nonresident scholar at Georgetown University’s McCourt School of Public Policy.

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