It would be difficult to think of a principle that has fuller assent from the senior leadership of American higher education than diversity — in admissions, in hiring, in curriculum, and as a guiding principle in shaping the life of a campus. But it’s painfully obvious that the embrace of diversity inside higher education does not represent a national consensus. With some aspects of diversity, higher education can continue to steer its own course relatively unimpeded, but one where it probably can’t is race-conscious affirmative-action admissions at selective institutions. President Donald Trump’s Department of Justice has come out as an opponent of one key aspect of diversity: the use of race as a plus factor in admissions. With the addition of Brett Kavanaugh to the Supreme Court, which has been the central battleground on this issue for decades, there may be for the first time a clear majority of justices opposed to affirmative action.
One can get a sense of what the Supreme Court’s new mood about affirmative action might be from Justice Samuel Alito’s dissent in the 2016 Fisher v. Texas case, the most recent challenge to affirmative action to get to the court. The dissent, which was much longer and more passionate than the majority decision upholding affirmative action, got the votes of Justice Clarence Thomas and Chief Justice John Roberts. “This is affirmative action gone wild,” Alito wrote about the University of Texas’ race-conscious admissions policy. He ended this way: “Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable — and remarkably wrong.”
Now Kavanaugh and Neil Gorsuch have joined Alito, Thomas, and Roberts on the court, and a much-publicized new challenge to affirmative action, filed on behalf of Asian-American applicants to Harvard, is before a federal district court in Boston. Although it wasn’t explicitly an issue in the Fisher case, Alito had a lot to say about Asian-Americans in his dissent. About a lower court’s failure to mention Asian-Americans in its decision, he wrote, “The Fifth Circuit’s willful blindness to Asian-American students is absolutely shameless.” In another passage, he declared baldly that “UT discriminates against Asian-American students.” That would indicate a receptivity to taking on the Harvard case, if it gets that far in the court system.
The previous time of greatest peril to affirmative action was probably the late 1990s. Never a winner in electoral politics, affirmative action had recently suffered the largest of a string of setbacks in state ballot initiatives with the passage by a wide margin of Proposition 209, the 1996 California measure that banned race-conscious admissions and hiring by the state government, including the university system. President Bill Clinton, worried about his re-election after the Democratic Party’s big losses in the 1994 midterms and aware that Proposition 209 was a likely winner, announced in 1995 that his administration was undertaking a major review of affirmative action. (Bear in mind that neither of Clinton’s two immediate successors, one a Republican and one a Democrat, chose to let the public know that he was ambivalent about affirmative action.) The review ended with a speech by Clinton, whose memorable slogan was “mend it, don’t end it” — hardly an unqualified defense.
The courts have always been a venue somewhat friendlier to affirmative action, but, also in 1996, the Supreme Court declined to hear the case of Hopwood v. Texas, thus letting stand a lower-court decision that banned race-conscious admissions at the University of Texas Law School. In 1998, voters in Washington State passed an anti-affirmative-action ballot initiative modeled on California’s. The term “preferences,” as a pejorative name for affirmative action energetically promoted by its opponents, was beginning to enter the language.
In the intellectual world, probably the main event regarding affirmative action in the mid-1990s was the publication of The Bell Curve, by Richard J. Herrnstein and Charles Murray, which argued that intelligence (for which they used the SAT as a proxy) is all-important, substantially inherited, and associated with race — and therefore that all forms of affirmative action should be abolished. Two generally liberal magazines, Newsweek and The New Republic, published cover stories on The Bell Curve, treating it as a serious work of science that raised uncomfortable but undeniable truths.
Even inside the academic establishment, support for affirmative action was not rock-solid. In 1985, Robert Klitgaard, a special assistant to Derek Bok, then president of Harvard, published a book called Choosing Elites (Basic Books) that was notably skeptical about affirmative action, especially in elite universities. “In general, the more selective the institution and the better its prediction of later performance, the higher the costs of increased representation [of minorities] will be,” Klitgaard wrote.
It was in this atmosphere, and in anticipation of another major legal challenge to affirmative action, that Bok and William Bowen, by then the former presidents of Harvard and Princeton, wrote The Shape of the River (Princeton University Press), which was published 20 years ago and still stands as the most detailed and precise defense of affirmative action. It’s another sign of those times that The New York Times commissioned a review by Alan Wolfe, a highly respected political scientist, that supported the prevailing arguments against affirmative action. Wolfe wrote:
It would be wrong to conclude from The Shape of the River that affirmative action works. What Bowen and Bok have proved is that going to a top college works. Their book unintentionally fuels rather than quenches the passions over affirmative action. For if a degree from a top college benefits those who receive it as much as Bowen and Bok clearly demonstrate, then those passed over for admission to those colleges really do have cause for complaint.
Because the Supreme Court had declined to hear the Hopwood case, the law of the land on affirmative action was one thing in the Fifth Circuit, which had decided the case, and another elsewhere, where the Supreme Court’s close and carefully limited ruling, which permitted affirmative action to continue, in the 1978 Bakke v. University of California case (that’s where the term “diversity” came from) still prevailed. It was clear that another Supreme Court case was coming, and that it was likely to involve the University of Michigan, where two lawsuits in the spirit of Bakke and Hopwood — by white plaintiffs denied admission, who claimed that affirmative action represented unconstitutional racial discrimination against them — were already in the court system.
The Supreme Court was obviously split on the issue, as it has been since it was unable to reach even a split decision in its first case on affirmative action in admissions, DeFunis v. Odegaard, in 1974. At the time that The Shape of the River was published, Justice Sandra Day O’Connor was considered the swing vote — and indeed, in 2003, it was Justice O’Connor who wrote the five-to-four majority opinion in the Michigan cases. That decision upheld the legality of affirmative action on narrow grounds, but declared, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s 25-year deadline is now only 10 years away; it’s inconceivable, given the overall climate in higher education and in particular Harvard’s vigorous defense in the Asian-American case, that universities will agree with O’Connor unless her successors force them to.
So The Shape of the River was a book with a focused and urgent mission: to rescue affirmative action at a moment of existential peril. It was impossible to miss the signal of commitment it sent to have a nearly 500-page book, co-authored by the former long-serving presidents of two of the country’s most esteemed universities, aided by a supplementary roster of four collaborators and many other prominent manuscript readers, containing dozens of charts and tables showing the results of careful quantitative research, appear at that moment as a full-throated defense of affirmative action.
Another moment of existential peril is here, and it’s useful to take another look at the book. It shows exactly how the argument has to be made if the intended audience is people who don’t take it as a given that diversity is a sacred first principle for universities.
Today, discussions of diversity quickly broaden to a variety of categories — for example, sexual orientation. The Shape of the River is notable, on rereading today, for its tight focus on race. Although some of its data encompasses other categories of ethnicity and socioeconomic background, the overall argument is in favor of elite universities going to special lengths to increase their proportion of black students. There are a number of reasons for this. First, as Bowen and Bok note, affirmative action was a direct result of the civil-rights movement and its aftermath; universities collectively awakened to their being overwhelmingly white as a problem, and decided to integrate themselves as a matter of policy. This was substantially voluntary on universities’ part, not something forced on them by government.
Second, all the political and legal challenges to affirmative action, and most of the intellectual critiques as well, were based on the letter and spirit of the 14th Amendment to the Constitution and the Civil Rights Act of 1964: the idea that it is uniquely offensive to take someone’s race into account in making a consequential decision. Edward Blum, the conservative activist behind the Harvard lawsuit, has shown a talent for publicity in creating the impression that the case pits Asian-American applicants against alumni children, donors’ children, and athletes. It doesn’t. There have not been high-profile lawsuits against admissions preferences for athletes or children of alumni or members of any of the other special categories admissions offices use, because there is not a clearly available legal argument against them. The only way to defend against the main line of attack on affirmative action, that it violates the ideal of “color-blindness,” is by making a case for color-consciousness.
Finally, and perhaps most important, affirmative action had come on the heels of another major change in the way elite universities, which have remained prominent for centuries by changing constantly, define themselves. In the United States in the 20th century, the adoption of the research-university model — featuring a dual role for faculty members, tenure, disciplinary associations, government funding of research, and the academic publishing apparatus — was the most important systemic development. One of its many aspects was that the definition of an ideal student moved in a more academic direction. The widespread adoption in the middle decades of the century of national, standardized multiple-choice tests meant to measure academic potential, like the SAT, was in service of this goal.
The elite private colleges that were Bowen and Bok’s major concern never instituted an entirely — as opposed to primarily — academic standard for admission; they continued to take other factors into account, like athletic ability, family ties to the university, geography, and life history. On the whole, though, the adoption of standardized tests in elite university admissions wound up increasing both their perceived openness to all and the perceived value of their degrees, and that led to an ever more intense competition for a limited number of admissions slots.
But America’s long history of racial injustice had produced substantial, long-running average differences between black and whites on most measures of educational potential and performance. This created a direct conflict between universities’ double determination to have a student body with higher test scores and a more racially integrated student body; Bowen and Bok calculated that at the most selective universities, admitting purely on the basis of SAT scores would cause the percentage of black students to drop from almost eight to just over two. To varying degrees, these universities had decided to modify their primary commitment to using quantitative academic criteria in order to enact their newer commitment to integration.
And the lawsuits against affirmative action have been substantially based on defendants showing that there was a level of standardized-test score where a black applicant was far more likely to be admitted than a white applicant. For example, Bowen and Bok’s data showed that under the SAT scoring system of the time, at five highly selective colleges, a black applicant with a combined score between 1350 and 1399 had a more than 75-percent chance of admission, and a white applicant had less than a 30-percent chance. In no other preferred category — alumni children, athletes, applicants from low-income families — was the test-score gap as wide as it was racially.
Conversely, no deracialized form of affirmative action, like privileging class instead of race, could produce a student body that was not significantly less black. And it wasn’t as if the black-white differences were merely an artifact of test scores. In the elite universities they sampled, Bowen and Bok reported, “The average rank of black matriculants was at the 23rd percentile of the class, the average Hispanic student ranked in the 36th percentile, and the average white student ranked in the 53rd percentile.”
It’s characteristic of Bowen and Bok, an economist and a lawyer both deeply committed to the norms of academic life, that they would insist on addressing affirmative action through rigorously obtained data, not shy away from candor about what it entails, and try to answer the arguments against it through evidence rather than passion. They were also constrained by their evident decision to keep their discussion within the boundaries set by the Supreme Court, in which it was impermissible for a university to set aside a specific number of places for black students, but permissible to use race in service of the goal of creating a diverse student body, under very limited circumstances. In the words of Justice Lewis Powell’s opinion in the Bakke case, “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element.”
At the time, universities welcomed the Bakke decision because it represented the court’s finally sanctioning affirmative action, in words written by a Republican appointee. In retrospect, the court was sending a signal that was both weak — the nine justices collectively filed six opinions, none of which got a majority vote — and highly limiting, because it forced universities to base their defense of affirmative action on a single fateful word.
The picture that Bowen and Bok create makes it clear that elite universities were using race as a powerful plus factor in admissions — and had to, in order to get to the proportion of black students they wanted — in ways that stretched Powell’s conception of how race was supposed to be considered. But they took pains to present data on the importance of becoming comfortable around people different from oneself as a crucial life skill, and of the central role of universities in imparting it. Because of affirmative action, elite colleges are likely to be far more diverse than the environments most of their students came from.
Most of The Shape of the River, though, is focused on a different argument for affirmative action than diversity. It is that for black students, going to an elite college is a highly positive experience, not just while they are students, but for a long time afterward. They complete their undergraduate education and then go on to graduate and professional schools at high rates, they do better economically than they would have otherwise, and they are also likely to be deeply involved in civic activities. This kind of information was partly meant to refute the idea that affirmative action “overmatches” black students by placing them one notch higher in the university hierarchy than they should be, but it also gets at what may have been a more central concern, though one that the narrow jurisprudential frame created by Justice Powell’s decision in the Bakke case 40 years ago — diversity is the only acceptable argument for affirmative action — makes it difficult to state in a court case.
Elite colleges have an important role in creating a disproportionately influential group in American society. Ivy League colleges probably don’t deserve the full measure of obsession that they get from prospective students and their parents. Still, every current member of the Supreme Court went to either Harvard or Yale Law School. The last presidential election in which neither of the major-party candidates had a degree from either Harvard or Yale was in 1984. Graduates of elite colleges are heavily overrepresented in the upper ranks of academe, technology companies, Wall Street, publishing and journalism, and other fields that help set the course for the country.
The title of The Shape of the River signals the expectation that affirmative action is a necessary precondition to integrating, down the river a ways, this elite leadership group. In a country where race has clearly been the leading cause of division and conflict, being managed by a multiracial group is both just and necessary. Other countries with similar bad histories with race and caste — India, Brazil, Malaysia — have adopted policies in the same spirit.
If you judge by this standard, the half-century of affirmative action at highly selective universities has been a success. Not only are universities themselves significantly more racially integrated than they were before, so are many of the institutions to which the elite universities lead, because these institutions take the elite education credential as a reassuring signal. And taking on this reformist project has not been an act of collective self-sacrifice on the part of universities; if anything, it has enhanced their stature and influence in American society.
It may be an unintentional connection, but the jacket of the first edition of The Shape of the River shows, to go along with the title, a map of a bend in a river. Look closely, and you’ll see that it’s the lower Mississippi River, north of Baton Rouge, Louisiana — the heart of the antebellum plantation economy, with the riverfront properties of slaveholders clearly denoted. A great deal flowed from that part of the river, some of which affirmative action is meant to correct.
Deeply embedded in The Shape of the River is the idea that universities should have “institutional autonomy” that allows them to admit whomever they want. Although the academic standard remains the primary one, universities are unwilling to operate by a single, openly stated, dispositive admissions criterion, and that inevitably leaves the majority who don’t get in feeling bewildered about exactly what it was that caused them not to get the place they wanted. Applicants and their families see an admissions slot as a golden ticket that universities should be duty-bound to offer to those who deserve it most. Universities see admissions as an exercise in institutional curation, requiring the subtle balancing of subjective cultural, political, and economic factors. In the United States, strong applicants who don’t get in to one of the elite colleges Bowen and Bok studied are very likely to wind up graduating from another, also excellent institution, but that doesn’t mean it’s possible to achieve comity between applicants and admissions offices. It isn’t. Many people are going to feel wronged.
Even after whatever strife the admissions process entails, universities, like the rest of the country, are not a collective paradise of racial harmony. The reason genuine integration is so rare is that it takes a lot of effort. If you decide to import the most difficult issue in society into the daily life of your institution, it’s unrealistic to expect that the result will be that either the sociological newcomers to the university will cheerfully adopt the culture of the majority, or vice versa. If everyone’s perspective were the same, then the diversity argument for affirmative action would fall apart.
Bowen and Bok are so closely attuned to answering, with data, the arguments against affirmative action that they spend relatively little time on the big contextual question: Why race? They make an overwhelming case that race-based affirmative action is necessary to achieve a nontrivial black presence on elite campuses, and that attending elite colleges is a long-running positive experience for black students. But why does that matter so much? Why does it deserve primacy among the many other goals these colleges are trying to honor?
In higher education, where the value of racial diversity is widely assumed, people almost always say that there isn’t enough diversity, rather than that it isn’t a worthwhile primary goal. The question of how to get better at diversity, in admissions and also in the student experience, dominates. Even discussions played in the key of The Shape of the River — that is, candid warnings about how steeply the black presence would drop under any admissions policy that used academic and class criteria but ignored race — are rare. So it’s easy to miss that the range of possibilities for affirmative action is not just the same versus more. Outside of universities, in court cases, in initiative campaigns, and sometimes in speeches and advertisements by politicians, another set of questions emerges. Why should it be permissible to consider race in the operation of institutions, even as a positive factor? Why should a black applicant from an economically privileged background get a place that might have gone to a poor white applicant?
Justice Alito wrote, “Affirmative-action programs were created to help disadvantaged students.” That’s a powerful premise, but historically, it’s simply not true. The closest we have to a ringing presidential endorsement at the outset of affirmative action is Lyndon Johnson’s 1965 commencement address at Howard University; Johnson chose a historically black university as his venue, and made a specifically racial argument: “It is the glorious opportunity of this generation to end the one huge wrong of the American Nation,” meaning black-white race relations, via new policies that would represent “the next and the more profound stage of the battle for civil rights.” Affirmative-action admissions programs were created at the same time and in the same spirit.
The argument for affirmative action has to rest on the idea that for historical reasons that have a very long tail, race deserves a special status. Race was not just, as W.E.B. DuBois put it, “the problem of the 20th century,” but also the problem of the 19th century. To a lesser but still distinct extent, it is the problem of the 21st century. The persistent, though decreasing, black-white gaps on academic measures are manifestations of how profoundly different the black and white experiences in the United States still are, economically, socially, residentially, educationally, and in almost every other way. Elite universities are trying to do their part to build a society, on campus and afterward, where racial discrimination will not be so pervasive. That is going to take a lot longer than Justice O’Connor’s deadline of 2028 — both inside and outside the universities.
That affirmative action is necessary is a sign that the negative effects of racism persist; only when they end will it no longer be necessary. And until then, affirmative action, both as lived experience on campus and as a political and legal issue is the wider society, is going to continue to be challenging to enact and to maintain. Another in the long series of battles to preserve it is upon us.
