What's Next for Affirmative Action

Ruminating with Rick Kahlenberg about the SCOTUS decision and the promise of class-based preferences

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On June 29th, the Supreme Court outlawed race-based preferences in college admissions. I oppose the decision, for reasons outlined here by Ruth Marcus in the Washington Post, and by the Century Foundation, (a liberal think tank where I’m a board member) and Rick Kahlenberg, whom I met in the early 1990s, was a longtime fellow. Rick, now a senior fellow at the Progressive Policy Institute, a non-resident scholar at Georgetown University and a lecturer at George Washington University, has devoted much of his career to spreading the idea of giving preference on the basis of class, not race. He provided research on behalf of the plaintiffs in the Harvard case. Now, if colleges and universities want to maintain diversity (which they obviously do), they will have to adopt Rick’s approach. This won’t likely be enough to keep the number of black students at elite institutions at their current levels, but it remains the only plausible path forward. Rather than re-arguing the case, Rick and I explore what class-based remedies would look like, as well as the themes of Rick’s new book on how housing discrimination is now based more on class than race. 

JONATHAN ALTER:

Hi, Rick. Did anything in any of the opinions — especially Chief Justice Roberts’ majority opinion — surprise you?

RICK KAHLENBERG:

I was pleased that Justice Sotomayor's dissent encouraged universities to adopt affirmative action programs for first generation and low income students. That is now an area of common ground among liberal and conservative justices.

JON:

Will the portion of the majority opinion encouraging students to write essays about overcoming racial obstacles give colleges a work-around to maintain the status quo?

RICK KAHLENBERG:

I believe a fair system evaluates a student's record in light of obstacles overcome.  That might include growing up in a poor neighborhood, or being the victim of racial discrimination.  That's very different from giving blanket preferences based on which racial box is checked.  An Asian American student, for example, might discuss how discrimination presented a hurdle.

JON:

Do you think the absence of class-based affirmative action from the headlines set back efforts to move toward that kind of an admissions process?

RICK KAHLENBERG:

I didn't read it that way.  Both the majority and the dissent rallied around giving an admissions boost to low income and first generation college students.  And I was very pleased that President Biden endorsed admissions policies that consider "adversity," whether the student is from "Appalachia" or "Atlanta." 

JON:

I think of you as a classic "Hedgehog" in the Isaiah Berlin formulation [from his famous essay The Hedgehog and the Fox, where hedgehogs believe one big thing and foxes many things]. As a hedgehog, you’re in the company of people like Plato and Ibsen and Nietzsche who believed in one big idea. How did you first develop this idea of affirmative action by class, this notion that the world — thanks to the Supreme Court — is now catching up to? 

RICK KAHLENBERG:

I would say it goes back to my days in college. I read a book about Bobby Kennedy by Jack Newfield, called Robert Kennedy: A Memoir. In the book, Newfield talks about the ways in which Bobby Kennedy senses that we have important racial issues to address but at the same time, there are bigger class issues that we've ignored. That if you wanted to try to do something about it in this country, you had to build multiracial working class coalitions. 

I'm a strong supporter of civil rights and addressing racial discrimination, but I think that at times the left has become so focused on race that we ignore this bigger picture. My senior year, I did my thesis with Dick Neustadt at Harvard on Bobby Kennedy's 1968 campaign. 

JON:

Neustadt was my professor in a class I took at the Kennedy School [while an undergraduate] on “The Uses and Misuses of History” that hugely influenced my thinking and, later, my Newsweek column, and we stayed in touch. He was not only arguably the best political scientist of the 20th Century — Presidential Power is a classic — he was a warm and wonderful guy. Sorry, please continue.

RICK KAHLENBERG:

I agree 100 percent. Neustadt was a phenomenal thinker and mentor. Anyway, I talked to a lot of Bobby Kennedy’s aides about the exciting things that he was doing to continue to push forward on civil rights. He had enormous support from Black and Hispanic voters, but he also managed to appeal to some white working class people who had voted for George Wallace for president and that's an exciting idea. Everyone thinks it's dead now that Trump came onto the scene and has done phenomenally well with white working class voters. However, to me it would be a tragedy for the Democratic Party to give up on this group of voters, many of whom are struggling.

JON: 

Was there a moment when you realized that the Democrats were doing that? 

RICK KAHLENBERG:

Well, it's been an evolving process. Throughout the 70s, there were Nixon Democrats, then in the ‘80s, Reagan Democrats. Bill Clinton tried to change that some. But I think the key moment when there was an effort to really reject many working class white voters was in 2016. When Hillary Clinton described a group of millions of voters as “deplorables” — I think that had multiple consequences. First, it forfeits a huge piece of the voting population. Second, it signals that these voters are so beneath Democrats, so “deplorable” that it's almost wrong to even want their votes. Trump also helped convince Democrats that it was no longer a worthy project to try to recruit large numbers of working class white voters.

JON: 

Well, Joe Biden still believed it was a worthy project, right?

RICK KAHLENBERG:

Biden has done some some good things to try to attract those voters and it'll be fascinating to see what he does with the issue of affirmative action, because there's a huge opportunity for him to signal to working class white voters that — in addition to his strong commitment to black and Hispanic voters — he also recognizes that they struggle. Biden has, however, also engaged in a number of highly racialized policies that go beyond civil rights and non-discrimination and endorse racial preference. I think that will complicate his efforts to reach out to working class voters.

JON: 

What are a couple of quick examples of that?

RICK KAHLENBERG:

Well, this case is an example. Biden supported Harvard and University of North Carolina in embracing racial preferences that are not related to class. So Harvard has now become majority minority, which is a beautiful thing. It also has 15 times as many rich students as low income students. I have never heard any critique of that aspect of Harvard's policy and instead, there was kind of a full-throated endorsement [of affirmative action by race]. 

There were also some problematic policies that came up during COVID. In providing financial support for small businesses, restaurants in particular, the government gave priority to those owned by members of many groups. They essentially said, every group can benefit except for straight white men. I find that problematic especially from someone like Joe Biden, who historically has believed in the Bobby Kennedy coalition and has a bust of Bobby Kennedy in the Oval Office.

JON: 

His son [Robert F. Kennedy, Jr.] is running against Biden. Let’s just drill into the COVID policy a little bit here, because how did that regulation actually read? What do you mean when you say it included everybody except straight white men? 

RICK KAHLENBERG:

You could receive PPP money sooner if you are Black, Hispanic, Asian, female, gay or lesbian or a veteran. So the only category that’s not included was straight white men who had not served in the military. 

JON: 

My understanding is that this was done by encouraging government contractors to process the money through financial institutions that lent in under-served areas, where the money was moving more slowly.

Moving back to affirmative action in education: What was wrong with the Bakke decision and later the Grutter decision that the Court just struck down?  [Regents of the University of California vs.Bakke in 1978 outlawed the idea of numerical quotas, but allowed colleges to engage in affirmative action; Grutter vs. Bollinger in 2003 gave colleges some latitude to make up a diverse class as they saw fit]. Sandra Day O'Connor raised the question of “when is this going to end?”. In 2003, she put a 25 year time limit on it, which we’re almost at, but what was wrong with those SCOTUS decisions as workable solutions that allowed colleges to remedy past discrimination and to make up a class with the kind of diversity that could enhance the college experience?

As a related question, why should the government tell colleges what to do in this area?

RICK KAHLENBERG:

The goal of creating a racially diverse class is one I totally support. There are enormous benefits in the college environment, and benefits for our society, in having elite colleges be racially integrated, because our leadership class is disproportionately derived from these institutions. So the goal is an important one. The problem is that universities took a shortcut in achieving that and instead of reaching out to someone who would be the quintessential beneficiary of affirmative action, someone who grew up in a tough neighborhood, who went to under-resourced schools and managed to do pretty well — they did something else. Elite colleges essentially brought together upper-middle class black and Hispanic people to be in school with white and Asian students who are even wealthier. It was racial justice on the cheap, it's a lot less expensive for a college to bring in those groups of students because you don't have to provide that much financial aid. 71 percent of Harvard’s underrepresented minority students come from the top socio-economic fifth of their minority population. 

JON: 

How much money is that a year, Rick? Are these people with families that have six figure incomes? Because the top fifth doesn’t mean very much if you're dealing from a relatively low basis. How about just looking at it in terms of financial aid? What percentage of the minority students are on financial aid at Harvard? 

RICK KAHLENBERG:

Well, I don't know the figure offhand. But that reaches up to $200,000 a year. So Harvard will brag about the fact that some large portion of its class get some sort of financial aid, usually around 50-60 percent. What's unspoken is that almost half the class can afford $80,000 a year, for four years, with two or three kids in college at the same time. It's not hard to get financial aid at Harvard.

JON: 

So what we're talking about is Harvard and the University of North Carolina bringing in a lot of middle class and upper middle class Black and Latino students, not rich, as a way of meeting their diversity requirements and not working hard enough to get low income students of all races into their universities?

RICK KAHLENBERG:

That's right. The next question everyone has: why not just do both? Why not just push for [economic] class preferences alongside of racial preferences? And I tried that, back in 2003, after the Grutter decision came down. I worked with [then-Harvard President] Larry Summers and some others to say, “Let's build up our socio-economic diversity.” But there have been just massive financial incentives for universities not to do that. Every penny you spend on financial aid is money that could go to a faculty salary increase or more volumes in your library, and so that never happens. That's why the idea of class plus race, while theoretically enticing, never happens. However, when universities are forced to stop using race, they don't give up on racial diversity. We saw that in lots of states where race-based affirmative action was banned. They are now embracing a form of class-based affirmative action. A lot of them also got rid of legacy preferences and other preferences that tend to benefit wealthy white people. 

JON: 

So which state universities are doing it right, and what are their results? Might we take some comfort from this in the wake of the Court’s decision? 

RICK KAHLENBERG:

The University of Texas is one that has done a good job. They have created the top 10 percent plan. So that if you do well in your high school, irrespective of your SAT scores, you are admitted to UT-Austin. The result was that they start admitting working class students of all races. That's where you did get a Bobby Kennedy coalition. You had rural white Republican legislators, teamed up with black and Hispanic urban legislators, to support this top 10 percent plan because UT-Austin had been monopolized by a small number of wealthy white suburbs and the private schools that are associated with those suburbs. So this opened up a whole new world to working class students. 

There was research in 2012 that found that seven of 10 flagship universities around the country were able to get as much black and Hispanic representation using non-racial factors as they had in the past using race. The three outliers are ones you may have heard about: UCLA, UC-Berkeley and the University of Michigan. However, UCLA and UC Berkeley have recently ramped up their socio- economic efforts. They recently created their most diverse classes in 30 years. So it is possible to have both racial diversity and economic diversity when universities are forbidden from using race.

JON: 

Right, so how will this play out in private colleges and universities that cannot use 10 percent plans and the like?

RICK KAHLENBERG:

My sense is that universities are deeply committed to racial diversity. It has become part of their DNA. Harvard will say that diversity is a hallmark of a Harvard education. So they're not going to walk away from racial diversity. Instead, they will adopt a number of things that they should have done years ago. 

They should get rid of legacy preferences [for alumni], and they should get rid of preferences for the children of faculty, who are among the most educationally-advantaged students in the country. They should allow more really bright students from community colleges to transfer, as Amherst, UCLA and UC- Berkeley currently do. And they should give a meaningful break to working class students of all races. 

In the litigation of the Harvard and UNC cases, we modeled what would happen and found they are able to produce strong levels of racial diversity and much more economic diversity. It's going to cost them more, but they can afford it. When they cannot, we need to see federal and state governments step up to provide more support for financial aid for these institutions.

JON: 

So there's a chance for a kind of a grand bargain, where in exchange for not resisting implementation of this decision, colleges and universities would get additional state and federal aid. Is that where you believe we might be headed? 

RICK KAHLENBERG:

I think that's right. We've seen models for that. Racial preferences are deeply unpopular with the American public, but at the same time, Americans rightfully support  racial diversity.  They do not want to see higher education resegregated. So in states like Florida and Texas we saw conservative governors in the 1990s who stepped up to the plate and did provide more financial aid for working class students of all races because there was the political support for achieving racial and economic diversity without racial preferences. That's the sweet spot in the public opinion polling. 

So I expect that there'll be strong support for that. Donald Trump has made white working class people the base of the Republican Party so it seems to me that it would be hard for people like him to say to working class white voters, “Okay, you've been screaming about affirmative action for years and now your kids can benefit from it, but I'm going to walk away from it under the new plan.” I just don't think that makes sense for conservatives.

JON:

But in the short term, won't there be some resegregation before these adjustments are made?

RICK KAHLENBERG:

In the very short term, evidence from the states where race-based affirmative action was banned suggests that it will take a while for universities to figure out the new path. I don't expect that universities will immediately implement the programs, but I think over the long term we will see better kinds of affirmative action programs that have broad political support, broad legal support, and will really help the students who need it most. We’ve been talking about white working class people who have been left out of affirmative action. However, I'm more concerned about the working class Black and Hispanic students who are virtually absent at these selective colleges.

JON:

Well, when you say take a while, how long is the transition? What you're basically saying is we're going to need to take a step back on diversity, so that we can take a step forward on fairness and diversity. But when does that happen?

RICK KAHLENBERG:

Well, it depends on universities and public officials. But we definitely don't want to see Black and Hispanic enrollment plummet for any period of time and so ideally, they would move very quickly. I just know that some public officials and universities have taken a little while to move forward. My hope is that they can act very quickly.

JON:

Aren't they more likely to just do away with standardized tests, so that no one can argue that they are discriminating against white and Asian-American students with higher scores? 

RICK KAHLENBERG:

That has been happening already.  Lots of universities during COVID abandoned the requirement for SATs and ACTs and many of those policies are still in place. But that doesn't solve the racial and economic diversity problem. Because the base issue is that we have unequal public schools and unequal opportunity in America. Any indicator you use is going to reflect the fact that some students have overcome obstacles and others haven't. So whether it's teacher recommendations, high school grades, AP scores, success in extracurriculars (which cost a lot of money) — all these things are biased by class and have a racially disparate impact. So just eliminating one measure is not going to solve the problem for these institutions.

JON: 

So after the Bakke decision in 1978 that basically outlawed quotas, colleges and universities said, “Okay, we don't use quotas anymore. We're not going to put anything on paper. We're going to have these things as goals.” It seems to me that what a lot of these colleges will do now is just no longer require the SAT. ACT, then say to possible litigants, “You can't establish any racial discrimination. On what basis could you do that? We don't accept SATs or ACTs anymore and these black kids we admitted had high grades. So we didn't discriminate in their favor.”

Is this a possible practice that some colleges might adopt? 

RICK KAHLENBERG:

That won't work. When you have thousands of applications coming in, you have to quantify, otherwise the system becomes impossible to administer. So in the Harvard litigation, they had a score. They had a score for grades and extracurriculars and standardized tests. There was one controversial score associated with integrity that was seen as discriminating against Asian Americans. So if universities try to cheat and continue to factor in race in admissions, that will be detectable whether or not they use SATs and ACTs. There will always be quantitative measures. 

Class-based affirmative action is a solution that is neither evading nor working around the Supreme Court. It is fulfilling what the Supreme Court has historically said, which is that racial diversity is a positive thing. But there is a [resistance] to using race as a defining characteristic that we're going to award substantial weight to. And that’s basically what the Court said in its decisions in the Harvard and UNC cases.  

JON: 

You wrote a book very critical of legacy admissions. Is this decision a death-blow for legacy admissions?

RICK KAHLENBERG:

I think it will put enormous pressure on universities to eliminate legacy preferences. We saw that happen at UCLA, UC-Berkeley, Texas A&M, University of Georgia. When these institutions stopped using race, it became very hard to justify legacy preferences. There's always been kind of an unholy alliance between the consideration of race and legacy. It was useful to the civil rights community to point to legacy preferences as another example of deviating from traditional notions of merit in admissions. That dynamic will change once race is no longer available.

JON: 

So could we end up concluding a few years from now that getting rid of legacy admissions and preferences actually helped get to a place where you had racial diversity through affirmative action by class?

RICK KAHLENBERG:

Yes, legacy preferences tend to help wealthy white students. So if a university says “Listen, we believe in racial diversity, we're desperate for it. We have to do everything we can, within the bounds of the law, to try to achieve racial diversity through new means.” Getting rid of legacy preferences is the lowest-hanging piece of fruit because it's very unfair. And [as explained in my book], there's no evidence that it actually increases donations. And it's a deeply anachronistic practice to begin with. We fought a revolution to get away from the idea of inherited advantage, an aristocracy and royalty.

JON:

How does it not increase donations?

RICK KAHLENBERG:

Donations do increase for legacy applicants when they're in high school. But as admissions have become more and more competitive, institutions have increasingly had to reject even the legacies. Then the parents are furious because they feel they’ve been told both that “Your kid isn't good enough for us” and “Even with a legacy preference, your kid is still not good enough for us.” It often makes parents so upset when their kid gets denied with a legacy preference that they cut off donations altogether, which offsets the [donations] they made while the kid was in high school. 

JON:

I have classmates from Harvard who did this when their kid didn’t get in. Kinda pathetic, but I guess it adds up.

RICK KAHLENBERG:

It also makes no sense to the parents because they look at their kids and they say their academic records and everything else are more impressive than when I went. What that misses is that the whole process has become much more competitive over time. 

JON: 

How do you think this big SCOTUS decision will affect politics? 

RICK KAHLENBERG:

I think there will be broader positive political ramifications. Arlie Hochschild did research on working-class whites and why they vote against their own self interests. One big theme was that these voters believed other people are cutting in line. She interpreted this as their negative views towards immigration and affirmative action policies that explicitly say, “We're going to favor someone based on race.”

So Barack Obama had it right when he said that his own daughters didn't deserve a break in admissions and that economically disadvantaged people of all races do. I remember talking to an Obama staffer and saying, “Well, this is fabulous, how can I help you implement that?” And her answer was, “He can't do this, his hand has to be forced by the courts.” That's what’s going to happen now. I think politically we will be in a much better place. For years, Democrats have been on the defensive, defending racial preference policies that are deeply unpopular. If the debate becomes “Should economically disadvantaged people get a leg up?” — that moves into favorable terrain for Democrats. I hope Republicans will go along but they may shoot themselves in the foot and go against a very popular policy of uplifting, hard working students who've overcome disadvantages.

JON: 

Let's talk about your new book coming out next month, Excluded: How Snob Zoning, NIMBYism, and Class Bias Build the Walls We Don't See. What's it about?

RICK KAHLENBERG:

It's parallel to the discussions we've been having about affirmative action. It's about exclusionary zoning, which are local government laws that forbid the construction of multifamily housing. These laws often say that even if you are building a single family home, it has to be on a very large lot, half an acre or more. It's blatant class discrimination. It's a way to exclude people of lesser means from upper middle class and wealthy neighborhoods. It also has a negative racially disparate impact on Black people and Hispanic people. It drives up the cost of housing. We're in a housing crisis where people can't afford rent and when you limit the supply of housing, prices just keep going up and up. 

We've seen some exciting progress in places like California, Minneapolis and Oregon. For years, everyone said, “Yeah, exclusionary zoning is a bad thing, but politically can't touch this.” It turns out you can touch it. In the last five years, we've seen a number of places reduce exclusionary zoning in part because rural white legislators have constituents who feel looked down upon by people in wealthy cities in California and suburbs. And black and Hispanic people know that these exclusionary historical laws have been used to keep them out. So we’re getting new coalitions similar to the one in Texas with the 10 percent UT admissions plan, where this multi-racial working and middle class coalition defeated the wealthy white suburbs. It’s painful to me that the worst forms of exclusionary zoning are among highly educated liberals. 

JON: 

How do we know that? How do we know it is liberals more than conservatives in these white suburbs that are doing this? 

RICK KAHLENBERG:

It's been empirically established by a number of researchers, I don't think there's a question about whether it's true. I think the benign explanation is that liberals, for good reasons, have supported things like environmental regulations, and open democracy, where everyone gets a say in how rules are changed in a society. Those are good things but they've been weaponized to keep development out of affluent white communities.

JON: 

Basically, what we're talking about here are white people who have a BLM sign on their lawn, but then they go to their zoning board to make sure that the multifamily dwelling that has been proposed by developers doesn't get built on their street.

RICK KAHLENBERG:

Yes, precisely. We love our black [and Muslim] neighbors, so long as they're millionaires, like us. That's the gist of the message, as political scientist Omar Wasow and others have noted. I don't think that it's oftentimes racial animus per se. There is research to suggest that upper middle class white liberals do have better, more tolerant attitudes on race than people with less education. But they also have higher levels of prejudice against those with less education. So it's not that upper middle class highly educated white liberals are less prejudiced. It's that the targets of their prejudice are different.

JON: 

So they discriminate, not on the basis of skin, but on the basis of sheepskin, correct? 

RICK KAHLENBERG:

Yes precisely, I wish I had used that line in the book. 

JON: 

To deepen the argument a little bit, sometimes it's an aesthetic kind of snobbism, right? So they might say to the developer, well, if you want to build a six-unit building on my street that’s great. But it has to have a certain number of feet of yard on one side and other specs. It has to be nice. And of course if it's really nice, then it's not affordable housing anymore. So you might have six educated families that move in so they can say, “Well, no, I'm not  adamant about single family occupancy.” But it doesn't do anything for the affordable housing problem, because the developer can't afford to both make it nice and to charge low rents.

RICK KAHLENBERG:

Absolutely. This happens in lots of places. I talked to some developers in Columbus, Ohio, and they said that the trick used by a lot of communities is they say, “Yes we'll allow some multifamily housing but it has to have this very expensive siding on it.” It becomes another way to exclude. I'm working with Emanuel Cleaver, a Democratic member of Congress from Missouri, on the idea of an Economic Fair Housing Act that would get at that kind of discrimination. So yes, single family, exclusive zoning is the most blatant form of exclusion. But there are also more subtle practices such as requiring inordinate amounts of parking. The Economic Fair Housing Act wouldn't make all those requirements illegal. But it would require local governments to offer some powerful justification for these policies, and if they can't, then it's illegal to discriminate based on income.

JON: 

People use a lot more than siding and parking to prevent development. Where it gets tricky is that some of them are legitimately in the community's interest. Height requirements, for instance, might lessen the amount of affordable housing, but they are good for the aesthetic quality of the community. 

RICK KAHLENBERG:

Those are the issues at stake here and there are trade-offs. But the idea of the Economic Fair Housing Act is to smoke out the rationales and to hold them up to scrutiny, to see whether they make sense. There was one place in Sunnyvale, Texas, where they were citing all sorts of environmental reasons for excluding multifamily housing. The judge looked at that and said, “Well, I can see you're making this argument but ultimately, the totality of the evidence suggests this was aimed at an exclusion.” 

I’m not for eliminating zoning. But. we've gone way overboard in protecting incumbent homeowners, limiting the supply of housing, which is bad for the environment, bad for education, and bad for racial equality. There are lots of reasons why we have to become more aware of the ways in which we build walls around communities, and then begin to try to chip away at those.

JON: 

What is Edward Blum [who funded the Harvard litigation] going to do next? Do you have any idea?

RICK KAHLENBERG:

I don't have a sense  I imagine he will go after universities that look like they're not in compliance with the Supreme Court. Richard Rothstein had a piece in The Atlantic where he was critical of my view of class based affirmative action, and his solution was to defy the Supreme Court. So I think there will be some institutions that simply cheat and use race. If that happens, I imagine that Students for Fair Admissions [the successful litigants] will want to go after that cheating. My hope is that they focus on cheating rather than on goodwill efforts to try to bring about some additional racial diversity in a much fairer way, which looks at economic disadvantage. 

JON: 

But what about the Asian-American community, which is not economically disadvantaged? They're counting on this landmark decision to  raise the number of Asian-American students at selective colleges. Is that necessarily going to happen?

RICK KAHLENBERG:

Well, under the modeling of class-based affirmative action at Harvard, the white numbers go down and there is a dip in Black enrollment. [From 14 percent of the student body to 10 percent]. Hispanic numbers go up and Asian numbers go up. So Hispanics and Asian-Americans would actually do better under a system of class-based affirmative action than one that's race-based. Importantly, Harvard didn’t give us access to the [net worth] of [the families of] applicants, and if we’d had it, we could have mitigated any decline in black representation. So overall, economic diversity increases a lot, and racial representation holds pretty steady. 

JON: 

We’ll know fairly soon if you’re right, Rick. I sure hope so.