If history is any guide, Supreme Court ruling in Students for Fair Admissions v. Harvard won’t mark the end of the struggle over the constitutionality of race-conscious policies. It won’t even mark the beginning of the end. Most likely, it will just be another in a long series of inflection points. To borrow from one of the more amusing lines from Justice Antonin Scalia’s analysis of the “Lemon test” that used to govern religious freedom jurisprudence, race-conscious policies are like a character in a horror movie: no matter how many times courts (and voters) drive their stakes through its heart, it keeps coming back.
Some of this is ideological stubbornness. Institutions of higher learning and a large swath of corporate America want what they want in terms of racially diverse campuses and workforces. And what they want isn’t always bad and is sometimes necessary to ensure that systems, companies, and technologies that touch all types of people have a diversity that reflects the country. The nation’s history of slavery and racial discrimination will never be “over” in a final sense, and affirmative action has been useful in helping find remedies for aspects of this legacy, including the way it has mitigated the worst aspects of human tribalism.
Nowhere are opinions in favor of race-conscious policies as strong as they are on college campuses. We can expect clever and committed university administrators to look for “daylight” in the Supreme Court’s ruling that would allow them to continue race-conscious admissions under another name, or perhaps no name at all; some schools have already indicated as much. These maneuvers will likely prompt new litigation and new rulings. We may be done with race-conscious policies, but they are not done with us.
Is there a way out of this cycle? One alternative would be to replace race-conscious policies with race-neutral policies and programs that focus on chronic and intergenerational poverty. On many indicators of concern—like wealth accumulation, educational attainment, inequality, substance abuse, criminal justice involvement, and the like—low-income whites look very much the same as low-income blacks. Why shouldn’t public policies that seek to unwind these negative outcomes reflect that reality?
Housing values are an example of this. The Biden administration has been arguing that assessments of home values are biased against black Americans, systematically undervaluing their property. Yet this theory of “value redlining” doesn’t withstand scrutiny. Anecdotes notwithstanding, when AEI researchers controlled for factors like the number of single-borrower mortgages (a proxy for single-parent households) and Equifax credit scores, the apparent black-white disparity in home values disappeared. It’s the socioeconomics, not racial characteristics, that drive the disparities in home values. (I discussed some of these ideas in a National Affairs essay earlier this year.)
What’s true in housing values tends to be true in other areas of concern. In a recent book, Carol Graham of the University of Maryland and Brookings Institution finds that non-college-educated whites display higher levels of distress and hopelessness than black and Hispanic Americans, and appear to be substantially less likely as individuals, families, and communities to make the investments in education and training that would allow them to advance socially and economically. If the key factors driving poverty are unrelated to race, then it would make sense to move away from approaches to poverty that focus on rooting out systemic racism (which, I hasten to add, is a real problem) and toward systemic disadvantage that looks for the causes of persistent poverty wherever it occurs. In addition to helping us see the causes and effects of poverty more clearly and design better remedial policies, deracializing poverty would also very likely have the benefit of broadening the base of public support for programs that improve access to opportunity for all disadvantaged people.
The argument for race-conscious policies depends on the idea that minority members of our society—rich or poor—continue to suffer from discrimination that impedes their progress toward equality. Observant readers will note the contradiction embedded in that argument; the reason we have cared about race is that it served as a marker of potential disadvantage. When black Americans achieve significant success, it should be recognized as a sign of progress; in those instances, affirmative action is no longer needed to remedy historic ills or current deficits.
Qualification for affirmative action policies (or whatever name they will be called next) that takes into account educational attainment, income, and social mobility would still reach disadvantaged blacks, but such policies would also help direct scarce resources and opportunities to the neediest—irrespective of their race. They might also help our nation start to move away from the poisonous and divisive politics of race.