Myths and Facts About Affirmative Action, Higher Education, And The Constitution

Affirmative action policies that will come before the Supreme Court in the upcoming Fisher v. University of Texas case have long been the target of right-wing misinformation that distort the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.

FACT: Race-Conscious Government Action Is Legitimate

MYTH: A “Correct” Reading Of The Constitution Does Not Allow Affirmative Action In Higher Education

National Review's Roger Clegg: “No Discrimination, No Preferences, No Quotas, No Goals Based On Race Or Ethnicity.” Frequent NRO contributor and anti-affirmative action advocate Roger Clegg has long complained that race-conscious government actions are "untenable" with the Constitution:

[T]he way to fight discrimination is not through more discrimination. As Chief Justice Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” We have plenty of laws that ban racial discrimination, and they should be enforced. That's the way to fight discrimination -- not by piling politically correct discrimination on top of politically incorrect discrimination. [National Review, 1/26/12]

Chicago Tribune's Kass: “The Constitution Is Colorblind.” Chicago Tribune columnist John Kass, among others, attacked then-nominee Sonia Sotomayor's views on affirmative action:

[T]he other side of [Sotomayor's life] story also speaks to racism. Not the knuckle-dragging kind shrieked by ignorant barbarians. That's easy to condemn, whether the knuckles are white, black or brown.

Yet there is another kind. The media don't recognize it as racism and instead lard it with virtue, calling it by its Orwellian name: affirmative action. Yet many know it by what it is: government-backed racial preference. [The Chicago Tribune, 5/29/09]

But Chief Justice John Roberts' Much-Quoted Line On Government Use Of Race Was Rejected By A Majority Of The Court. In the Parents Involved case, wherein the Court found a school district's desegregation plan unconstitutional for its overreliance on race, Roberts' opinion contained his now-famous “way to stop discrimination on the basis of race” quote. However, Roberts' blanket condemnation of race-conscious integration plans was rejected by a majority of the Court and Justice Anthony Kennedy explicitly reaffirmed that some forms of race-conscious admissions policies are permitted:

[T]he opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account...The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases...To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson... In the real world, it is regrettable to say, it cannot be a universal constitutional principle. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. [Parents Involved in Community Schools v. Seattle School District No. 1, 6/28/07]

Race-Conscious Government Action Has Long Been Permissible Under The Constitution. The Constitutional Accountability Center has established that the text and history of the Constitution permit race-conscious measures:

For the last four decades, the fight over the constitutionality of race-conscious measures to foster equality has been reduced to a sound-bite - whether the Fourteenth Amendment is “color-blind” - with conservatives claiming the mantle of Justice' s Harlan's dissent in Plessy v. Ferguson to argue that the Fourteenth Amendment prohibits virtually all use of race by the government.  Progressives, all too often, have missed their most powerful rejoinder: the Fourteenth Amendment's text and history.  As our brief explains, not only does the Amendment's text permit government to enact race-conscious policies to fulfill the Constitution's promise of equality, but the Framers of the Amendment themselves enacted many such measures. [Constitutional Accountability Center, 8/14/12]

FACT: Eliminating Affirmative Action In Higher Education Will Resegregate The Training Grounds For This Country's Leaders

MYTH: There Are Viable Alternatives To Race-Conscious Admissions Processes

Fox Business' Dobbs: “Let There Be Equity In All Things.” Conservative media figures have long complained that consideration of race in admissions processes is unfair to whites, and have suggested that economic disadvantage could serve as an "alternative" means of broadening admissions:

The Century Foundation's Kahlenberg: “Data Show That Economic Affirmative Action Can Produce A Positive Racial Dividend.” Richard D. Kahlenberg, senior fellow at The Century Foundation, is probably the foremost proponent of substituting race-conscious affirmative action with admissions policies that focus on low socioeconomic status:

How is it possible that schools in states that have eliminated racial affirmative action generally do quite well on the social mobility index? On balance, race-based affirmative action programs should produce marginally more economic diversity than should providing no affirmative action. (Even though black affirmative action beneficiaries are often wealthy, they usually attend college with even wealthier white classmates, according to research by William Bowen and Derek Bok.) But the choice isn't between race-based affirmative action and no affirmative action. To their credit, universities in states that banned racial affirmative action have turned to economic affirmative action programs as a way to boost racial diversity indirectly. [The Washington Monthly, accessed 10/9/12]

But Upper Tier Schools That Rely Solely On “Economic Affirmative Action” See A Decline In Students Of Color. As confirmed by social science evidence submitted to the Court and reported by the Associated Press and many others:

[S]upporters of affirmative action draw different lessons from the experiences of the states trying race-neutral methods. For one thing, they note states like California, Florida and Texas are much more diverse now, so holding minority numbers steady isn't progress.


The nearly 100 briefs filed in the Fisher case also include several from social science researchers arguing race-neutral alternatives don't work. In its brief supporting Texas, the University of California argues that when state voters ended affirmative action in 1996, it was unable to enroll a critical mass of black students, particularly the two most prominent campuses -- Berkeley and UCLA.


“The University of California has tried almost everything (to recruit more minority students),” said Gary Orfield, co-director of the Civil Rights Project at UCLA. “It's true the least selective colleges of the University of California are highly diversified, but we've had almost a disappearance of black students here at UCLA.”

Highly selective institutions like Berkeley and UCLA generate a disproportionate share of future leaders, Orfield says, and are key pathways to professional and graduate schools. Without using race in admissions, such universities will look hardly anything like the states they're supposed to serve, and minority students won't have access to critical opportunities. [Associated Press, 10/3/12]

Promoting Racial Diversity In Higher Education Is The “Compelling Government Interest.” It was precisely in furtherance of this compelling interest that Justice Sandra Day O'Connor previously upheld the race-conscious admissions scheme that the University of Texas has now adopted:

In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.


Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.  [Grutter v. Bollinger, 6/23/03]

FACT: Eliminating Affirmative Action Risks Pushing Students Of Color Out Of Specialty Fields, Not Just The Most Selective Schools.

MYTH: Students Of Color Are “Mismatched” At Upper Tier Schools By Affirmative Action And Would Be Better Served At Less-Selective Schools

UCLA's Sander and National Journal Columnist Taylor: Affirmative Action Tends To “Boomerang And Harm Its Intended Beneficiaries.” UCLA Professor Richard Sander and journalist Stuart Taylor Jr. recently released a book advocating that students of color admitted to selective schools under race-conscious policies are the victims of the “mismatch” effect:

The mismatch effect happens when a school extends to a student such a large admissions preference -- sometimes because of a student's athletic prowess or legacy connection to the school, but usually because of the student's race -- that the student finds himself in a class where he has weaker academic preparation than nearly all of his classmates. The student who would flourish at, say, Wake Forest or the University of Richmond, instead finds himself at Duke, where the professors are not teaching at a pace designed for him -- they are teaching to the “middle” of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student. [The Atlantic, 10/2/12]

Fox News' Gutfeld: “They're Not Prepared.” On The Five, Greg Gutfeld claimed that students of color admitted to four-year colleges under affirmative action would be better served by attending two-year post-secondary schools:

But Ending Affirmative Action Policies Does Not Create More Lawyers of Color. Experts rebutted Sander's initial mismatch theory:

Does Sander's claim about the end of affirmative action causing an 8 percent increase in the number of black lawyers sound implausible? That's because it is. In fact, a decline of 25 percent to 30 percent in the number of African-American attorneys is a much more realistic outcome. Sander's estimate is an accumulation of several significant errors, oversights, and implausible assumptions.


Moreover, several unrealistic assumptions in Sander's model render his [] estimate far too optimistic. He assumes that applications from African Americans would not decline were affirmative action to end. In reality, applications from black students consistently dropped when the public law schools in California, Texas, and Washington banned affirmative action in the late 1990s. [The Journal of Blacks in Higher Education, Winter 04/05]

The Underlying Criticism Of The Mismatch Theory Remains Relevant Today. Sander and Taylor have filed an amicus brief in Fisher to detail the mismatch effect and leading experts again note the weaknesses of the theory:

[T]he principal research on which Sander and Taylor rely for their conclusion about the negative effects of  affirmative action--Sander's so-called  “mismatch” hypothesis--is  far from  “unrebutted.” Since Sander first published findings in support of a “mismatch” in 2004, that research has been subjected to wide-ranging criticism. Nor is Sander's research “very careful.” As some of those critiques discuss in detail, Sander's research has major methodological flaws--misapplying basic principles of causal inference--that call into doubt his controversial conclusions about affirmative action. The  Sander “mismatch” research--and its provocative claim that, on average,  minority students  admitted through affirmative action would be better off attending less selective colleges and universities--is not good social science.

Sander's research has “significantly overestimated the costs of affirmative action and failed to demonstrate benefits from ending it.” That research, which consists of weak empirical contentions that fail to meet the basic tenets of rigorous social-science research, provides no basis for this Court to revisit longstanding precedent supporting the individualized consideration of race in admissions. In light of the significant methodological flaws on which it rests, Sander's research does not constitute credible evidence that affirmative action practices are harmful to minorities, let alone that the diversity rationale at the heart of Grutter is at odds with social science. [Brief of Empirical Scholars as Amicus Curiae in Support of Respondents, 8/13/12]

FACT: The Importance Of Affirmative Action Is Recognized By Fortune-100 Companies And The U.S. Military

MYTH: Support for Affirmative Action Is Limited to Progressive Activists

National Review's Editors: “The Time Has Come, At Long Last, To End Racial Preferences[.]” When the 2008 Republican candidate for president supported his party's official opposition to affirmative action, the editors of the National Review applauded:

If Sen. McCain is trying to show conservatives that he is one of us, on this issue, at least, he has succeeded. But our considerations ought to be broader than that: The principle of e pluribus unum is vital to all Americans across the political spectrum.

McCain's commitment is not only sound on principle, but it is wise politics, in both the high and low meanings of the term. In an America that is increasingly multiethnic and multiracial -- indeed, in a country where individual Americans are themselves more and more likely to be multiethnic and multiracial -- we cannot have a legal regime that sorts people according to skin color and national origin. [National Review, 7/29/08]

Fox News' Hannity: Affirmative Action Is “Reverse Discrimination.” Conservative media consistently attack affirmative action as a liberal concern, and Sean Hannity has incorrectly called it a betrayal of Dr. Martin Luther King's principles:

But Affirmative Action Enjoys Broad Support From Major Institutions, Including The Nation's Largest Businesses. Leading American corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, filed an amicus brief in support of the University of Texas:

This Court should reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest.  The principles established in Grutter are more important today than ever.  For amici to succeed in their businesses, they must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds.  It also is critical to amici that all of their university-trained employees have the opportunity to share ideas, experiences, viewpoints and approaches with a broadly diverse student body.  To amici, this is a business and economic imperative.

Today even more than when Grutter was decided, amici operate in a country and world economy that are increasingly diverse.  Amici have found through practical experience that a workforce trained in a diverse environment is critical to their business success.  Amici are dedicated to promoting diversity as an integral part of their business, culture, and planning.  But amici cannot reach that goal on their own.  The only means of obtaining a properly qualified group of employees is through diversity in institutions of higher education, which are allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons. [Brief for Amici Curiae Fortune-100 and Other Leading American Businesses in Support of Respondents, accessed 10/9/12]

The U.S. Military Has Also Reaffirmed Its Support For Affirmative Action In Higher Education. Based not only on constitutional law, but also on war-time experience, the U.S Military reminded the Court that many of its officers come from military academies and the ROTC programs of selective schools:

The armed services have long recognized that building and maintaining a military force that is both highly qualified and broadly diverse--including in its racial and ethnic composition--is a “strategic imperative, critical to mission readiness and accomplishment, and a leadership requirement.”  As both the enlisted ranks of the military and the population of the Nation have become increasingly diverse, military leaders have concluded that an officer corps that is markedly less diverse than the enlisted ranks, and that is unattuned to the diverse perspectives of those they must lead, can undermine the military's combat readiness. Fostering a pipeline of well-prepared and diverse officer candidates is therefore an urgent military priority.


ROTC programs, which provide military and leadership training to undergraduates interested in a military career and are the single largest source of new officers, can best achieve these goals when their participating institutions are diverse. In particular, selective universities that admit talented students with leadership potential and provide the educational benefits of diversity are a critical source of future officers.  DoD has found that minority officers who enter the military from “more selective colleges” have “significantly higher performance ratings” than similarly situated officers from less selective colleges. [Brief for the United States as Amicus Curiae Supporting Respondents, accessed 10/9/12]