Affirmative Action, Race or Class: An Exchange

To the Editor:

I wish to respond to Richard Rothstein’s critical review of my book, Place, Not Race, in your magazine. While I appreciate that he concludes that the book is “worth reading” and that my proposals are possibly even a “wise” response to the political and legal assault on affirmative action, I believe he mischaracterizes my argument in ways that would be misleading to anyone who doesn’t bother to read the book.

Rothstein insists throughout the review that I focus exclusively on low-income African-Americans while ignoring middle class ones. That is not true. As I argue in the book, only about 30 percent of black children live in middle class neighborhoods and not all of these children are poor. As Rothstein himself points out, proximity to poverty is a common, lived experience for African American families of varying incomes. If universities were to follow my proposal of giving special consideration to any high achiever that lives in a neighborhood or goes to a school where 20 percent or more of their peers are poor, this would help the vast majority of black and Latino children who currently suffer the disadvantages of segregation, which is one of the chief contributors to minority achievement gaps.

I also argue that any high achiever that comes from low family wealth deserves affirmative action, precisely for the reasons Rothstein identifies, i.e., that low family wealth is a direct legacy of housing and other discrimination. I also argue that standardized tests should be optional or not used at all, that financial aid should return to being need based, that legacy preferences should be scrapped and that institutions that are serious about diversity should work with partner organizations like the Posse Foundation and Questbridge that are astute at finding disadvantaged achievers that can do the work at elite institutions. All of these strategies will redound to the benefit of not just poor black achievers but also middle class black achievers.

I also reject the subtext of Rothstein’s critique, the idea that the only way for middle class African American students to gain access to selective higher education is through race-based affirmative action. If selective institutions followed Amherst College’s example and paid close attention to those factors that are truly predictive of college success (cumulative high school GPA and the willingness to delay recreation and do the work, which can be screened for), and reordered their financial aid priorities to be based on need rather than maintaining U.S. News rankings, a lot more middle class black natives (as opposed to advantaged African immigrants) would have a shot. I believe I have more confidence than Rothstein does that middle class black students can compete if they can access decent schools, which brings me to my final point.

Much more critical to remedying the under-representation of middle class African-Americans than affirmative action is remedying the separate and unequal product they receive in K-12 education. And creating a saner, more cohesive politics is critical to fixing what is wrong with K-12 education. The energy and friction around race-based affirmative action distracts us from the more important work of building cross-racial alliances for fairer public policies that will expand opportunity for struggling people of all colors. I don’t mind being race-conscious or talking about structural barriers that are grounded in a history of racial discrimination. But if progressives don’t create a discourse that helps struggling people coalesce around an increasingly common experience of exclusion and marginalization, we will only get more of the samea society that works only for those who are already advantaged. Progressives who care about diversity can try to hold on to what remains of race-based affirmative action, or they can work for something more transformative. I think my proposals are more radical, more responsive to the entrenched legacy of racial discrimination, and more unifying than simply using the blunt instrument of race and waiting for the composition of the Supreme Court to change.

Sheryll Cashin

Professor of Law

Georgetown University

Response

Professor Cashin’s letter asserts that she is equally interested in providing advantages to students from low-wealth families who live in middle-class neighborhoods as she is in providing such advantages to the poor. But this is not her book’s central theme: It is titled Place, Not Race because Professor Cashin wants competitive universities to emphasize recruitment of students from a poor place, not students from non-poor neighborhoods who are members of an exploited race. She does, as her letter indicates, say that middle-class students from families with low wealth should also be recruited, but gives no guidance regarding how little wealth might qualify students (of all races) for such special treatment and, as her book title states, she considers this a lower priority.

When the University of Texas at Austin attempted to provide a boost to middle-class African Americans, after finding that its “Ten Percent Plan” recruited mostly low-income students from highly segregated neighborhoods, the policy was challenged in the Supreme Court. Professor Cashin’s book reported an exchange at the Court’s hearing to which I alluded in my review. Her account of this exchange in Place, Not Race is worth reproducing verbatim:

In the Fisher case, UT’s lawyer asserted during oral argument that it was important to be able to give extra consideration to a hypothesized son of a black dentist from a Dallas suburb. Mr. Garre [the UT lawyer] reasoned: “[T]he minority candidate who has shown that …he or she has succeeded in an integrated environment” and has shown leadership and community service “is precisely the kind of candidate that’s going to …come on campus [and] help to break down racial barriers, work across racial lines, [and] dispel stereotypes.” Such candidates seemed more desirable to Garre (and possibly UT’s admissions officers) because, he stated, “the minorities who are admitted [under the Top Ten Percent Plan] tend to come from segregated, racially identifiable schools.”

As a passionate advocate for integration, I believe in the value of diversity and the idea that people should be exposed to “the other.” Still, there was something unseemly about UT’s argument, as Justice Alito pointed out in his rejoinder: “Well, I thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top ten percent plan admits…. lots of Hispanics and a fair number of African Americans. But you say… it’s faulty because it doesn’t admit enough… who come from privileged backgrounds.”

Consider the UT lawyer’s hypothetical dentist. An average black Texas dentist’s annual earnings are about $133,000: upper middle class, but far from rich. His income is pretty similar to that of other UT Austin parentsnearly a third have family incomes in excess of $165,000 and about half in excess of $110,000. So the dentist’s son, if admitted, would have a good chance of ‘coming on campus, helping to break down racial barriers, working across racial lines, and dispelling stereotypes.’ The dentist likely lives in a neighborhood that is not majority black and not poor. He may have received his dental degree from a historically black university, like Howard or Meharry. Although his annual earnings are about three-fourths of a white dentist’s, his net worth is likely a tiny fraction of his white counterpart’smost likely because, unlike the white dentist, he did not benefit from mid-20th century equity appreciation of his parents’ home. He is more likely than the white dentist to be the first generation in his family to have middle-class status. His son may not have graduated in the top ten percent of his class at a mostly white middle-class high school but still has academic qualifications that prepare him to succeed at a selective university like UT, without remediation. The son didn’t get into UT-Austin only because there are many more applicants of all races who meet UT-Austin’s minimum academic requirements than the university can accept. Were he not burdened by the ongoing effects of a multi-century, state-sponsored, unconstitutional racial caste system, the son might have been among the more qualified of the qualified and been more certain of regular admission. Race-based affirmative action is necessary, and should be considered constitutionally required, to offset the impediments that this caste system created for the dentist’s son.

Professor Cashin says in her letter that “only about 30 percent of black children live in middle class neighborhoods…” “Only?” Thirty percent is a substantial portion of black students and includes many who perform above the academic threshold for places like the University of Texas at Austin. With affirmative action, the undergraduate share of such African Americans from middle-class neighborhoods could grow to begin to approximate the African American share of Texas’ adolescent population. Such students from middle-class neighborhoods should be the priority in efforts to remedy multi-generational state-sponsored racial caste policy. By contrast, the top ten percent of students from segregated low-income high schools too frequently can succeed at places like UT only with a lot of special attention and remediationservices more appropriately delivered by community colleges and less selective state universities.

Professor Cashin, however, says that a focus on poor neighborhoods would “help the vast majority of black and Latino children who currently suffer the disadvantages of segregation.” This is an inappropriate goal. Highly selective universities like the University of Texas at Austin can’t possibly, and shouldn’t, attempt to help the “vast majority” of any group. We have public community colleges and less selective state universities for that purpose, while the mission of selective colleges is to train the academic elite. It is at such competitive places, like the University of California at Santa Cruz, the University of Michigan, and the University of Texas at Austin, where controversies over race-based affirmative action have arisen before making their way to the Supreme Court. The challenge faced by conscientious admissions officers at these universities, and others like them, is how to give a nudge to qualified African Americans who, but for the ongoing effects of unconstitutional practices, would have more likely been admitted anyway. A few of these applicants will be found in poor neighborhoods, but many more will be found in middle-class neighborhoods where they attend high schools with relatively higher levels of average academic performance.

Justice Alito is incorrect when he says that “the whole purpose of affirmative action was to help students who come from underprivileged backgrounds.” The purpose of affirmative action was, until perverted by a conservative Supreme Court, to offset where necessary the handicaps that African American students, regardless of their family incomes, suffer because of their membership in a subordinate racial caste.

Affirmative action is the wrong tool for assisting underprivileged students who are not members of this caste. We live in a country with unacceptable levels of economic inequality and with too little inter-generational mobility. The solution to this is not affirmative action but progressive economic policy: a more redistributive tax system, higher minimum wages, support for collective bargaining, reducing the cost of higher education, refinance of sub-prime mortgages, labor market reform (like current campaigns against arbitrary and flexible part-time work schedules), legalization of “dreamers,” expansion of Medicaid in states that have refused it, etc. Such policies will enable many more students from low-income neighborhoods to succeed in K-12 schools and then in post-secondary education and will make it more likely that in the next generation their own children will become competitive for the most selective colleges. Affirmative action cannot shoulder the entire burden of the fight against American inequality and blocked mobility.

Certainly, progressive admissions officers at elite universities should aim for greater diversity, because diversity enriches the educational experience. And they should contribute to efforts to enhance upward mobility by making special efforts to identify qualified students of all races from the lower social classes. But such efforts, while praiseworthy, are voluntary policy choices; unlike affirmative action for African Americans, they are not constitutionally required.

Professor Cashin charges me of proposing to wait “for the composition of the Supreme Court to change.” This is incorrect. As I said in my review, it is necessary for selective colleges to adapt their admissions policies to what the current Court will allow, and this requires pretending to be colorblind while designing subterfuges to increase shares of African American students. My distress about the argument of Sheryll Cashin and her allies is not that they support such accommodations to Supreme Court requirements. It is that they do so without protest and, as in Sheryll Cashin’s book, praise the “colorblindness” of the Roberts Court as being a superior approach to race-based affirmative action, an approach that if the Court hadn’t required it, civil rights activists would have been wise to invent on their own.

We are, after all, possibly one Supreme Court vote away from a return to enforcing the intent of the 13th and 14th Amendments not only to abolish slavery but to abolish what an earlier and more faithful court majority called the “badges and incidents” of slavery and of subordinate caste status, and their ongoing effects. The election of a Democratic president in 2016 and the retirement of a Republican justice will not, however, guarantee such a return. A new court majority will not proclaim loudly what liberals fear to whisper. If progressives follow Professor Cashin’s lead and now throw in the towel on race-based affirmative action, we can be assured that a better Supreme Court majority will not dare to correct them.

Richard Rothstein

Response

Richard Rothstein accuses me of offering “praise for the ‘colorblindness’ of the Roberts Court” when in fact, on page three of Place, Not Race, I castigate the Roberts Court for embracing color-blind constitutionalism. Among other arguments, I write:

Color-blindness is not the inevitable or only reading of the words ‘equal protection of the laws.’ It is one thing to recommend, for pragmatic policy reasons, that we use nonracial means to create real inclusion on college campuses, as I do later in this book. It is quite another to contend, wrongly, that our constitution inherently demands color-blindness.

Mr. Rothstein and I agree that African-Americans endure a legacy of discrimination and we both support affirmative action, however we have very different perspectives on how it should operate. Twice he has criticized me for advocating for place instead of race as a factor in university admissions, without acknowledging the several other reforms I recommend, strategies that would disproportionately benefit middle-class black achievers.

I argue that the lessons of affirmative actionwith its holistic consideration of merit and its de-emphasis of test scoresshould be applied to revolutionize the entire admissions process. Citing the research of Caroline Hoxby, Douglas Massey, and numerous other scholars, I contend that universities must do things differently if they are sincere about finding and including the high achieving students of color who do exist. I also argue that affirmative action should return to its original purpose of remedying discrimination, using accurate modern markers of the legacy of American apartheid: place (living in a neighborhood or attending a school where more than 20 percent of the population is poor) or low family wealth. I give both proposals equal billing in my recommendation to replace race. As I write on page 78:

Given the strong public opposition to use of race in college admissions and the risk of legal challenges under the tightened Fisher standard, it would make sense to tailor affirmative action to those who are actually disadvantaged by structural barriers…. For many but not all black youth, those disadvantages include exposure to concentrated poverty in segregated schools and neighborhoods and low family wealth. Research shows that low net worth affects a family’s ability to purchase a home in a high opportunity neighborhood with good schools, and it affects a student’s confidence that working hard will enable her to attend college.

I also state on page 83 that “I would not make place the only dimension for consideration of affirmative action” and again advocate for low family wealth, because this factor can be “traced to intentionally discriminatory public and private policy choices that endured for decades.” I then refer readers to Chapter Three of my first book, The Failures of Integration, which recounts this sordid intentional history in detail.

Mr. Rothstein acknowledges that I support consideration of low family wealth, but skewers me for not being more specific about how I would define it. No book is perfect. My goal was to write an accessible narrative that presents new ideas without being overly prescriptive. I exhort universities to innovate and give special consideration to high achievers that have to overcome structural barriers, particularly the enduring structures of Jim Crow.

Mr. Rothstein advocates for the hypothetical son of a black dentist whose “net worth is likely a tiny fraction of his white counterpart’s.” I agree; that is why I recommended low family wealth as one basis for affirmative action. Since Mr. Rothstein gives me no credit for covering that factor, he must be concerned with something else. He argues that a relatively affluent native son needs affirmative action because he is otherwise burdened by “the ongoing effects of a multi-century, state-sponsored, unconstitutional racial caste system.” In the book I recommend that colleges invite applicants to submit an optional statement on what disadvantages they had to overcome and that all forms of disadvantage should be considered. On page 79 I write: “If a middle-class black applicant is disadvantaged along some dimension other than place… a holistic approach to admissions would enable consideration of such actual disadvantage” (emphasis added).

I think the real source of Mr. Rothstein’s disagreement with me is his lack of faith that disadvantaged black people can compete at selective colleges. He claims that they “can succeed at places like UT only with a lot of special attention and remediation” and suggests that they belong in community colleges and less selective state universities. Paul Tough’s recent cover article in the New York Times Magazine suggests otherwise. With relatively low-cost interventions and a brief orientation, high-achieving students from low opportunity schools who gain entrance to UT by graduating in the top ten percent of their class are able to succeed. That some do not doesn’t mean that the Ten Percent Plan is a failure or that universities should not pursue innovative diversity strategies. The Posse Foundation scholars’ median combined SAT score of 1050 would not predict the enormous success these determined youth have in thriving at and graduating from selective schools. Universities must develop better screens for grit. Holding on to race as a factor in admissions, for the benefit of the most advantaged minorities, gives them little incentive to try.

Apparently Mr. Rothstein supports the very elitism and opportunity hoarding that I seek to undermine. Worse, he may even believe, although he does not say this, that the black dentist’s son cannot compete in selective admissions without affirmative action. As the daughter of a black dentist, a proud Meharrian who taught me to believe in myself and the greatness of the gene pool that survived the Middle Passage and Jim Crow, I disagree. As I argued recently in The Root, citing Ta-Nehisi Coates’ case for reparations, there is nothing wrong with blackness. It is segregation, not black skin, that must be accounted for if America is ever going to atone for its original sins. The black dentist’s son will get into a very good school, even an elite one, if he works overtime at academics. Many universities will fight over him. At least he is in the game. As I tell my sons in an epilogue letter, they will excel academically if they choose to put in the time. Hoxby’s work shows that thousands of hard-working, high-achieving kids who have the misfortune of not coming from elite places are not in the game and are being excluded.

Mr. Rothstein also does not acknowledge a growing irony with race-based affirmative actionthat its beneficiaries increasingly are immigrants who do not descend from or currently suffer the legacy of Jim Crow. His arch faith in race-based affirmative action as a remedy for native sons suffering in a racial caste system seems misplaced. He offers a litany of public policies that would help disadvantaged people, but those recommendations are useless without a strategy for moving beyond our racially divided, broken politics.

Hoping for a more progressive Supreme Court to emerge after 2016 strikes me as naïve. Even the liberal Warren Court did not begin to enforce the promise of Brown v. Board until a civil rights revolution changed popular sentiments about formal segregation. Public opposition to using race in college admissions will not go away. But most Americans will support strategies that help achievers of all colors overcome unfair structural barriers. The black dentist’s son might also appreciate being on a campus that has made the connection between grit and merit and spared him the stigmatic assumption that he doesn’t belong and can’t compete.   

Freedom is not free. Racial justice must be won with sweat equity. As I argue in Place, Not Race, the logical route to more fairness and equality is overt efforts at reconciliation and coalition building among the rainbow of people currently locked out of the American Dream.

Sheryll Cashin

Response

Professor Cashin denies she advocates colorblindness, citing her book’s assertion that while our constitution doesn’t inherently demand color-blindness, we should adopt nonracial means for pragmatic reasons. This concedes my point. As I documented in the book review, she repeatedly denounces race-based policies throughout. Readers of the book itself can decide whether she, or I, has mischaracterized the argument of Place, Not Race.

Certainly, high school graduates who are fully qualified for competitive colleges can be found in high poverty communities, and conscientious admissions officers can recruit them. But it is not so that ten percent of such graduates are fully qualified, or that they all (or even most) are better candidates for selective universities than qualified African Americans who live in middle class neighborhoods. Despite Professor Cashin’s attempt now to walk back her dismissal of affirmative action for these candidates, her book terms such policy “unseemly.”

She accuses me of believing that middle class blacks “cannot compete in selective admissions without affirmative action,” but she fails to grasp that there are many more qualified candidates, black and white, for selective universities than can be admitted; most qualified candidates are rejected simply from chance. Race-based affirmative action should increase the share of African Americans accepted from this pool of qualified candidates. It should do so because such affirmative action remains needed to remedy the consequences of slavery and Jim Crow, in the absence of which qualified African Americans would not continue to be under-represented on selective campuses.

The most important difference between us is whether, to borrow another land’s phrase, we need “truth” to achieve “reconciliation.” She believes that by downplaying the unique disadvantages suffered by African Americans because of their race (mention of them, she argues, can alienate potential white allies), our nation can raise African Americans’ status, first by pretending they are no different from other lower class families, and then by adopting policies to narrow inequality overall. I counter that while narrowing economic inequality and expanding opportunity is essential, Americans also have an unfulfilled obligation to confront our racial history’s consequences, and that until we do, little progress in narrowing racial inequality will occur. 

Richard Rothstein

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