Join the conversation
Subscribe to Our Emails
Boston Review is a public space for the discussion of ideas and culture. Sign up for our newsletters and don’t miss a thing.
August 9, 2013
A new Gallup poll shows that two thirds of Americans oppose the use of race in college admissions and believe applicants should be admitted solely on the basis of merit. At the same time 58 percent of respondents “generally favor” affirmative action programs for racial minorities.
In the survey, more than half of Democrats, joined by 87 percent of Republicans, opposed racial affirmative action in college admissions. Even African Americans were mostly split on the issue, with slightly more respondents favoring consideration of race and ethnicity.
The results of the new poll follow a common pattern in which Americans profess broad support for race-based affirmative action programs while simultaneously opposing “preferential treatment.” A May survey from the Public Religion Institute produced similar outcomes. In 2009 the Pew Research Center found that 65 percent of Americans rejected preferences to improve the position of minorities, but another Pew poll from two years earlier found a similar proportion of respondents in favor of affirmative action generally.
Highlighting the disconnect, Pew found that 60 percent of respondents favored “affirmative action programs to help blacks get better jobs/education,” while only 46 percent supported “affirmative action programs which give special preferences to qualified blacks in hiring/education.”
“Surveys typically suggest a divergence between questions about affirmative action in general and more specific policies or programs,” said Victoria Plaut, a social psychologist at the University of California, Berkeley School of Law. A concrete policy “can feel more proximal and more threatening to the dominant group—perhaps because it gets them thinking about limited resources.”
The Gallup poll was published exactly a month after the Supreme Court ruled in the latest affirmative action case before it, Fisher v. Texas. In that case, Abigail Fisher, who is white, argued that she was denied admission to the University of Texas thanks to an affirmative action program that considers the races of applicants. The Fifth Circuit, attempting to apply Supreme Court precedent that had overruled a previous Fifth Circuit decision in Hopwood v. Texas (1996), ruled against Fisher.
Fisher then appealed to the Supreme Court, which on June 24 vacated the lower court’s ruling and remanded the case for reconsideration. Writing for the majority, Justice Anthony Kennedy explained that the Fifth Circuit had in fact failed to apply Supreme Court precedent, which requires that cases such as Fisher’s be evaluated under the theory of strict scrutiny, the highest level of judicial review. Although laws evaluated according to strict scrutiny usually are struck down, the severe judicial test is not necessary a death knell. In 2003 the University of Michigan Law School’s racial affirmative action program survived the Supreme Court’s strict scrutiny in Grutter v. Bollinger. (Critics of that decision, including Justice Kennedy in dissent, have argued that the Michigan plan was never properly subjected to strict scrutiny and would not survive such a test.)
To the extent that Supreme Court decision-making mirrors public opinion—a hotly contested point—strong majority opposition augurs poorly for the future of affirmative action in higher education. There is a good chance the Fisher case or one like it will return to the high court in the near term, forcing the justices to affirm, refine, or discard existing doctrine, which holds that colleges and universities may consider race as one element of applicants’ backgrounds in an attempt to cultivate diversity on campuses. The diversity rationale, which was established in Regents of the University of California v. Bakke (1978) and reinforced in Grutter, is widely, though by no means universally, criticized by legal scholars who see it as a weak and disingenuous foundation for affirmative action. The public seems to agree. A 2009 Quinnipiac survey found that “roughly three in four voters rejected the notion that [affirmative action] programs should be undertaken to foster diversity.”
With voters lined up against specific preferences in education and hiring and the Court having tilted since Grutter toward a “colorblind” interpretation of the Constitution—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously intoned—there seems to be little room for policymakers to openly pursue the wider goals of affirmative action that the public consistently supports.
However, an opportunity seemingly remains for programs that pursue affirmative action goals through mechanisms that are apparently race neutral. For example, in Texas, all high school graduates who finish in the top ten percent of their class automatically receive admission to the University of Texas’s flagship school in Austin. The top ten–percent program—which was not challenged in Fisher v. Texas—is race neutral. But, thanks to de facto segregation in neighborhoods, which ensures that minority students cluster together in public schools, it also results in greater acceptance rates for minority students. The highest-performing students in a minority-dominated school will all be accepted to UT, Austin, even if their test scores and grades are lower than those of rejected white students who finish in the middle of their respective classes in more competitive public high schools. The top ten–percent program was instituted in response to Hopwood, which had shut down the use of racial preferences at the University of Texas.
Courts committed to colorblind ideology have typically been willing to accept formally race-neutral policies that are in fact covert forms of affirmative action. This represents an ironic twist given that race-neutral legalisms such as separate-but-equal were the basis of Jim Crow, anti-miscegenation laws, and other policies intended to legislate black inferiority without running afoul of the Constitution’s guarantees of equal protection. Because the Supreme Court has refused to accept a distinction between discrimination that promotes minority welfare and discrimination that harms it, the same kind of legal thinking that once enabled government-sponsored white privilege is now put to use in favor of minority advancement. While the public today would not back separate-but-equal, its conflicting opinions about affirmative action in general and racial preferences in particular force the adoption of such legalisms.
Photograph: Oran Viriyincy/flickr
...we need your help. Confronting the many challenges of COVID-19—from the medical to the economic, the social to the political—demands all the moral and deliberative clarity we can muster. In Thinking in a Pandemic, we’ve organized the latest arguments from doctors and epidemiologists, philosophers and economists, legal scholars and historians, activists and citizens, as they think not just through this moment but beyond it. While much remains uncertain, Boston Review’s responsibility to public reason is sure. That’s why you’ll never see a paywall or ads. It also means that we rely on you, our readers, for support. If you like what you read here, pledge your contribution to keep it free for everyone by making a tax-deductible donation.
Vital reading on politics, literature, and more in your inbox
Readers Also Liked
Printing Note: For best printing results try turning on any options your web browser's print dialog makes available for printing backgrounds and background graphics.