My point was not that there is no difference between race-conscious affirmative action and any conceivable substitute – it is that there is likely to be little difference between race-conscious affirmative action and the race-neutral alternatives most universities will adopt if prohibited from considering race.  (The example of the Top Ten Percent plan is misleading in this respect; it is unique to Texas’s demographics and its politics and would make no sense for most universities.)  Part of the confusion stems from ambiguity in the meaning of the term “alternative.”  One might say that any policy that in fact replaces affirmative action is an “alternative” to it:  if a university stopped considering race but left everything else about its admissions policy unchanged, the new policy could be said to be an “alternative” to the old one.  If I stop putting sugar in my coffee, then black coffee is an “alternative” to coffee with sugar.  But this is not what the Court means by an “alternative.”   What it means is a policy that serves the same function as what it replaces.   Putting Splenda in my coffee would be an alternative to using sugar, assuming I consider the function of sugar to sweeten the coffee and not to add calories.   Similarly, an alternative to race-conscious affirmative action would be a formally race-neutral means of achieving racial diversity.

If forced to ignore race but allowed to use an “alternative” in this sense, most universities will probably adopt criteria likely to maintain current levels of racial diversity.  Presumably a university forbidden to consider race, but allowed to use race-neutral alternatives, could focus on the specific disadvantages that account for lower high school grades or test performance among blacks and Latinos as a group.  One such disadvantage might be “stereotype threat” – a specific response to negative racial stereotypes.  Another might be the likelihood of encountering some racially prejudiced teachers who assigned unfairly low grades.  Can a university consider and adjust for these racially correlated disadvantages?  Is considering an applicant’s experience with racial prejudice or response to racial stereotypes the same as considering the applicant’s race, or is it a race-neutral consideration that only correlates with race?  What about an applicant’s experience in a racially defined community or an applicant’s concern with questions of racial justice?  This is the kind of hairsplitting the jurisprudence of “alternatives” invites.

At any rate, because university admissions already focus on each applicant as an individual and do not involve formal race-based programs, I suspect universities will be able to adjust to any formal restriction on the use of race qua race and continue to admit student bodies much like those that presently grace their campuses.  This is not because the universities will defy the Court and secretly consider race but because they already consider a host of factors that correlate with race and will simply give these factors more weight.   It may be that they make such adjustments in order to maintain current levels of racial diversity.  But of course that is what it would mean to employ a race-neutral alternative to race-conscious affirmative action.

But perhaps Mr. Kahlenberg really wants universities to ignore race entirely—both in devising admissions criteria and in the cases of individual applicants—because he believes that racial disadvantage is unimportant and socio-economic disadvantage is what really matters.  (I would note in passing that he cannot enlist the legacy of Martin Luther King Jr. in support of this idea: while it certainly true that King made class injustice a central focus of his activism, it is beyond doubt that he also recognized the importance of racially unique injustices!)  But then he does not really support race-neutral alternatives to affirmative action in the appropriate sense of the term.  Instead, he supports the elimination of affirmative action and of any alternative means of furthering diversity and the substitution of a distinct policy focused exclusively on socio-economic disadvantage.  True, such a policy might have some incidental racial effects, but the new policy would not be an alternative to affirmative action at all.  This would be like proposing that I put bourbon in my coffee “as an alternative” to sugar—I can think of a few good reasons to drink coffee with bourbon, but one would not be in order to make it sweeter, if even it did sweeten it a little bit.

Because a focus on socio-economic class is not “an alternative” to race-conscious affirmative action, but instead a distinct policy that must be evaluated on its own merits, nothing would require a university to respond to a ban on affirmative action by filling any spots that would have been occupied by blacks and Latinos who benefited from affirmative action with low-income applicants.  It could just as easily fill them with predominantly wealthy and elite applicants who have higher test scores and grades or with the children of influential alumni, politicians, or celebrities.  Race- and class-based admissions policies are not “alternatives” in the sense of being mutually exclusive or hydraulically related—the level of one rising as the other falls.   A university can seek to redress both socio-economic and racially specific disadvantages, as many do now—and will be free to redress neither if affirmative action is prohibited as a matter of constitutional law.  Accordingly constitutional law will not be the means to achieve greater socio-economic diversity in selective universities: the considerable virtues of class-based affirmative action must be argued in the popular branches of government and to university administrators.

So a focus on socio-economic disadvantage makes a lot of sense on its own merits, but it makes little sense as an alternative to race-based affirmative action in the relevant sense of the term “alternative.”  If it is acceptable for a university to care about racial diversity, it makes little sense to insist that it use indirect means of achieving it when it has available a direct approach in race-conscious affirmative action.  If it is not acceptable for the university to care about racial diversity, then it makes no sense to allow any means of achieving it.  The very fact that so many opponents of affirmative action propose race-neutral alternatives to achieving racial diversity proves that they have implicitly conceded the crucial constitutional point: there is a difference between considering of race for purposes of integration or diversity and considering race for purposes of exclusion or segregation.  Consider the constitutionality of a race-neutral alternative means of maintaining racial segregation.  After Brown, school districts in the Deep South adopted a host of formally race-neutral schemes to keep the schools segregated, such as assigning all pupils to the same school they attended the year before (when the schools were segregated by force of law).  These schemes were invalidated because the courts and the Department of Education saw them for what they were: formally race-neutral alternatives to Jim Crow segregation.  If there really were no difference between a Jim Crow policy and affirmative action—the premise of colorblindness rhetoric—then a race-neutral alternative to affirmative action would be as constitutionally infirm as a race-neutral alternative to Jim Crow.

This is this implausible premise that has to underlie the argument that affirmative action is unconstitutional—as opposed to simply bad policy.  There are many respectable reasons to think that affirmative action is bad policy: one might think that race-conscious affirmative action has run its course, that it causes more resentment and racial discord than it’s worth or that it siphons energy away from more important social justice goals, such as achieving socio-economic integration.  (Of course there are also many reasons to think affirmative action is sound policy.)  But these are not constitutional arguments.  The constitutional argument against affirmative action is that the Constitution disfavors any and all consideration of race, regardless of context, effect or underlying intent, to the same extent.  That is a bad argument and proof that it is bad is that even most opponents of affirmative action do not really accept it.

Posted in Fisher Symposium

Recommended Citation: Richard Ford, Online Fisher symposium: A response to Richard Kahlenberg , SCOTUSblog (Sep. 17, 2012, 11:40 AM), http://www.scotusblog.com/2012/09/online-fisher-symposium-a-response-to-richard-kahlenberg/