SALT LAKE CITY — Perhaps it’s time that we acknowledge that the affirmative action policies of institutions of higher education, often excused as pursuing diversity for diversity’s sake, are actually doing more harm than good.

First emerging during the 1960s, Presidents Kennedy and Johnson signed executive orders calling for “affirmative action” by government employers to prevent discrimination based on race, creed, color, national origin or gender. Over time, this prohibition against discrimination shifted and became a series of institutionalized preferences for groups that have been historically discriminated against. Then, the 2003 Supreme Court decision in Gutter v. Bollinger allowed the University of Michigan to relax its admission standards to allow a “critical mass” of African-American and Hispanic students and provided the excuse to other higher education institutions to follow suit.

On Monday, the Supreme Court returned to the question of race-conscious admissions in Fisher v. University of Texas but avoided examining the basis and effects of affirmative action too closely, instead punting the case back to lower courts for re-examination. The case — brought by a white woman who was turned down for admission to the University of Texas because though her credentials were better than those required for African-American and Hispanic, did not meet the standards for white or Asian students — is sure to return to the Supreme Court in coming years.

Related:

Affirmative action survives Supreme Court review

Affirmative action in college admissions survived Supreme Court review Monday in a consensus decision that avoided the difficult constitutional issues surrounding a challenge to the University of Texas admission plan.

But it may not be necessary, says Gail Heriot, a member of the U.S. Commission on Civil Rights and professor of law at the University of San Diego. As more research into the effect of affirmative action policies on students emerges, the picture is not positive. In fact, says Heriot, there is “mounting empirical evidence that race preferences are doing more harm than good — even for their supposed beneficiaries.”

Rather than helping make up for “centuries of law-sanctioned inequality,” as Justice Ruth Bader Ginsburg put it in her dissent from Monday’s opinion, instead affirmative action is serving to exacerbate deficiencies of minority students that arrive at schools far beyond their preparation, “mismatched” with schools otherwise beyond their reach for governmental race preferences.

Heriot said, “If this evidence is correct, we now have fewer African-American physicians, scientists, and engineers than we would have had using race-neutral admissions policies. We have fewer college professors and lawyers, too. Put more bluntly, affirmative action has backfired.”

In "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It," co-authors Richard Sander, a law professor at UCLA, and Stuart Taylor Jr., a legal journalist, argue that the result of widespread race-preferential policies is not to boost minorities but instead have tended to put them at the bottom of their academic classes. This isn’t due to a lack of gifted and talented minorities — quite the contrary. Rather, there just aren’t enough to satisfy diversity requirements of higher educational institutions, and standards are soon relaxed for certain racial groups, causing a “chain reaction, resulting in a substantial credentials gap at nearly all selective schools.”

Specifically, racial preferences are most often in favor of African-Americans and Hispanics, with universities utilizing lower admissions standards for them than for whites and Asians. For example, according to admissions data released by the University of Texas in connection with Fisher, the mean high-school GPA of Asians was 3.07 and of whites 3.04, while Hispanics were at 2.83 and African-Americans at 2.57. Asian students were in the 93rd percentile of SAT takers nationwide while African-American students were at the 52nd percentile.

#poll

And not too surprisingly, students’ scores to gain admission prove to be predictive of performance in college, especially in natural science, engineering or economics. Compared to students who get into college under more strict standards, students who get in with the more relaxed standards of racial-preferences struggle to succeed, their GPAs drop and eventually they switch to majors in the humanities and social sciences.

Interestingly, the effect is not limited to students who benefit from race preferences. A study examining the effect of race preferences on racial differences in GPA and major choice by Duke economists Peter Arcidiacono and Esteban Aucejo and Duke sociologist Ken Spenner found that white children and grandchildren of alumni that receive legacy preferences have the same experience.

The effects of racial preference policies are not limited to the sciences, either. A separate study of law schools by Sander, one of the co-authors of "Mismatch," found that outside of historically black colleges and universities at all tiers, the “average African-American student had an academic index — a combination of GPA and LSAT score — more than two standard deviations below that of his average white classmate.”

Even if Fisher eventually returns to the Supreme Court, it is time for us as a society to start examining the effect of racial preferences. Enshrined in the 14th Amendment of the Constitution is the Equal Protection Clause, establishing under law the principle that all are equal under the law: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” That race preferences violate the constitutional right of every American is a wrong. That the unintended consequence of affirmative action is that it is most damaging to the very people it is intended to help is a tragedy.

Some states have started to recognize this and have passed laws making race preferential policies illegal. California, led by Ward Connerly, passed Proposition 209 in 1996, banning race preferences. Washington and Michigan have followed with similar ballot measures.

Whether the Supreme Court eventually overturns affirmative action on constitutional grounds, as Justice Clarence Thomas said he would like to do in Fisher, it may not matter. It’s becoming more evident that affirmative action as a public policy has failed. Daniel Burton lives in Holladay, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com.

Related topics