Another Nail in Affirmative Action’s Coffin

Last night Oklahoma became the eighth state to ban affirmative action at public institutions, including colleges and universities. By 59 to 41 percent, voters approved a measure to prohibit racial preferences in state hiring, contracting, and education programs. Although Oklahoma is a conservative state, similar anti-affirmative-action referenda have passed in “blue” states, such as California, Michigan, and Washington. More than one-quarter of America’s high-school population lives in states that have banned racial affirmative-action programs at public colleges.

The vote is noteworthy for a couple of reasons.

For one thing, it underlines the deep and troubling divide between institutions of higher education and the American public on the issue of racial preferences. In the Fisher v. University of Texas litigation, contesting the use of race in college admissions, that is before the U.S. Supreme Court, colleges and higher-education associations have almost all supported the use of racial preferences. By contrast, when put to public referenda, racial preferences have been voted down in six of seven contests. (And where they did prevail, in Colorado in 2008, it was by 50.8 percent to 49.2 percent.)

As Richard Sander and Stuart Taylor Jr. observe in their new book, Mismatch, “We can think of no other public issue in which the leadership class displays such cohesion in the face of a largely opposite view among Americans in general.”

To be sure, public opinion should never be the sole measure of the worthiness of a particular position. But it should give members of the higher-education establishment pause that they are so far out of step with the American public on this question. And colleges should not cavalierly dismiss the larger impact on race relations of policies that explicitly favor underrepresented minority students.

This fall an astounding poll by the Public Religion Research Institute found that among working-class whites, some 60 percent agreed that discrimination against whites had become as big a problem as discrimination against blacks. Surely this finding reflects in some measure public reaction to policies such as racial preference in college admissions, policies that at elite institutions are found to provide the equivalent of a 310-SAT-point boost to African-American applicants.

Moreover, yesterday’s vote in Oklahoma may have significance beyond the Sooner State, to the extent that it influences the justices’ deliberations in the Fisher case. Finley Peter Dunne’s Mr. Dooley famously quipped that “the Supreme Court follows the election returns.” The aphorism overstates the case, but the Oklahoma vote—and those in other states—may nevertheless be important to the justices in a subtler sense.

Looking at the amicus briefs filed in Fisher, a Supreme Court justice who is inclined to curtail the use of racial preferences might be reluctant to pull the trigger given the overwhelming support for affirmative action from higher-education, business, and civil-rights groups. Indeed, even the Republican presidential candidate, Mitt Romney, failed to raise any issue with President Obama’s strong support for racial preferences in Fisher. This seeming consensus could deter justices from moving quickly against affirmative-action policies. On the other hand, the fact that voters almost always oppose the use of racial preferences could embolden conservative justices to discount establishment opinion on this issue.

While Oklahoma voters were not asked to come up with an alternative to affirmative action, a number of public-opinion polls over the years have found that voters do support the idea of colleges’ providing a preference to economically disadvantaged students of all races. And in almost all of the states where racial preferences have been banned, colleges have come up with alternatives that give a leg up to socioeconomically disadvantaged applicants.

Racial preferences are in a vise grip, with referenda on one side and the judiciary on the other. Higher-education officials need to start now to create alternative plans that satisfy both the American public and the Supreme Court’s sense of fairness.

Richard Kahlenberg is a senior fellow at the Century Foundation.

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