[A great deal can still be done. President Biden’s mention of
“adversity” in his comments on the Court’s decision is one key
to a new and more politically defensible form of affirmative action.]
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MOVING ON TO ADVERSITY-BASED AFFIRMATIVE ACTION  
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Paul Starr
July 3, 2023
The American Prospect
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_ A great deal can still be done. President Biden’s mention of
“adversity” in his comments on the Court’s decision is one key
to a new and more politically defensible form of affirmative action. _


Affirmative Action, by vpickering (CC BY-NC-ND 2.0)

 

The Supreme Court decisions
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down the use of race in university admissions close an era that began
about a half-century ago. What remains to be decided is whether the
Court’s rulings open a new era of affirmative action that serves
many of the same purposes but enjoys more political support and a
stronger legal defense.

When the Supreme Court decided _Dobbs v. Jackson_ last year, it
threw abortion into the political arena and awakened a popular
reaction in favor of reproductive rights, which in time may
effectively reverse the Court’s decision. The Court’s rulings on
race-based affirmative action at the University of North Carolina and
Harvard are unlikely to lead to an analogous political response.

The UNC decision is based on constitutional law, and no constitutional
amendment will be enacted to overturn it. The Harvard decision is
based on the Civil Rights Act, and there is unlikely to be any effort
to revise civil rights law to enable private universities to use race
in admissions because a large majority of the public opposes that
policy. That opposition should be abundantly clear after blue-state
California voters in 2020 soundly defeated a ballot measure that would
have restored race-based affirmative action in that state after voters
eliminated it in 1996.

This is the political reality: For now and probably a long time to
come, all the political routes to restoring race-based affirmative
action—through the courts, legislatures, and popular
referenda—have been cut off.

But this is also the reality: Universities—their leaders, faculty,
and students—are strongly committed to racial and ethnic diversity.
They believe diversity is essential to the mission of higher education
and the future of the nation. At the core of their commitment is the
recognition of the historical and continued exclusion of Black
Americans from equality in education and other institutions crucial in
shaping the nation’s collective life. No law obligated the
universities to pursue diversity; previous decisions by the Court only
allowed them to pursue it.

The question now is whether there is a legally and politically
sustainable substitute for race-based affirmative action: Can
universities effectively pursue the goals of equality, diversity, and
justice within the latest constraints set by the Court? In fact, a
great deal can be done, especially if people stop looking for a single
answer and think instead of multiple strategies that can contribute to
wider educational opportunity for Black Americans and others
historically excluded from higher education and still likely to be
underrepresented if universities simply abandon race-based affirmative
action and do nothing else.

President Biden’s mention of “adversity” in his comments on the
Court’s decision
[[link removed]] is
one key to a new and more politically defensible form of affirmative
action. “Students first have to be qualified applicants,” Biden
said, but “once that test is met, then adversity should be
considered, including a student’s lack of financial means … The
kid who faced tougher challenges has demonstrated more grit, more
determination, and that should be a factor that colleges should take
into account.”

That is exactly right. Overcoming adversity is a demonstration of
ability. The consideration of adversity is not a violation of the idea
of merit; it is a more complete understanding of the abilities that
matter in life. It fits entirely with the university’s proper
interest in identifying a student’s potential for
achievement. _Adversity-based affirmative action_, or perhaps
just _adversity action_, might be a good name for the alternative
Biden was highlighting.

The consideration of adversity is not a violation of the idea of
merit; it is a more complete understanding of the abilities that
matter in life.

Adversity may take many forms, including being subject to
discrimination and encountering many of the problems like housing
insecurity and underresourced schools that are correlated with race.
Nothing will prevent universities from taking those sources of
adversity into account as long as they do not use race _per se_ as a
factor in selecting students.

For a while in 2018-2019, the College Board experimented with an
“adversity score” for students taking the SAT, an adjustment based
on public data about the neighborhoods they came from. The idea was to
help universities identify “strivers” who scored significantly
higher than environmental factors predicted, but it looked to many
like a highly imperfect effort to salvage the SAT at a time when
universities were moving away from it. In the face of protests,
the College Board gave up
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the idea, but its failure to develop an adversity index shouldn’t be
the last word. Universities can use information about an individual
applicant and the applicant’s family, not just the applicant’s
neighborhood, as part of a more holistic evaluation that takes
adversity into account. One example now getting attention is
the socioeconomic disadvantage scale
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in admissions by the medical school at the University of California,
Davis.

Economic adversity—based specifically on low family wealth
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been the focus of much of the discussion about alternatives to
race-based affirmative action. Progressive critics of the idea such
as Richard Rothstein
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a frequent contributor to the _Prospect_, have argued that class- or
wealth-based affirmative action is unlikely to produce the same yield
in Black and Hispanic students as race-based admissions. That may be
true, but in the wake of the Supreme Court rulings, it is no longer
the relevant comparison. It also ignores the moral and political case
for addressing other sources of disadvantage besides race in
university admissions. Decisions that factor in economic and other
forms of adversity will survive the Court’s strict scrutiny, and
even if they cannot fully offset the end of race-based affirmative
action, they can significantly compensate for it.

From a university’s standpoint, the chief drawback of
adversity-based admissions is that they would be more costly in two
senses. Universities would be accepting more white students from
families with low wealth and income, not just more Black and Hispanic
students (which is why the new policies would have a stronger legal
foundation). Adversity-based admissions would boost the percentage of
Black and Hispanic students overall, but the effect would be even
greater on the total number of students requiring financial aid and
arriving in college with relatively less academic preparation. So
budgets for financial aid and other forms of assistance would go up,
while academic selectivity would go down.

Universities with enormous endowments like Harvard and Princeton can
afford the financial costs, and it would be no great tragedy if they
have to drop from the 99th to the 98th percentile in selectivity. But
liberal arts colleges and other institutions would have difficulty
managing the costs, though there is an adjustment they could make.

That adjustment would be to take more students transferring from
community colleges—not just a token few, but a substantial portion
of what would be their graduating classes. Community colleges not only
ease the financial burden on students and their families; they would
also ease the burden on four-year colleges and universities in seeing
the students through to a four-year degree. Transfer students do
require supportive services, but they’re crucial to a more
affordable path to adversity-based affirmative action.

Private foundations and other donors could also help finance an
institution’s transition to more costly adversity-based policies. If
they supported programs for racial diversity, they should understand
the imperative to pursue diversity on a broader, race-neutral basis.

It’s important to keep in mind how many students have been at issue
in this debate. _The New York Times cites
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University’s Sean Reardon, one of the leading sociologists of
education, as estimating that about 10,000 to 15,000 students graduate
annually from selective universities who might not have been accepted
without race-conscious admissions. That’s only about 2 percent of
the total number of Black, Hispanic, and Native American students in
four-year colleges.

Reardon’s estimate suggests two conclusions. First, compensating for
the end of race-based affirmative action is not a financially
impractical goal. Even if adversity-based admissions increase the
number of students requiring financial aid, the national cost should
be well within the means of private philanthropy and university
endowments, together with existing public programs.

Second, race-based affirmative action has affected only a very small
percentage of underrepresented minorities attending college or
aspiring to higher education. It has been a limited policy, successful
primarily in diversifying the nation’s elite and the
professions—important goals, but not the same as closing overall
gaps in higher education. If universities are constrained in their
admissions policies, they still have many other ways to contribute to
wider educational opportunity and racial justice.

In the cases just decided by the Supreme Court, the dissents by
Justices Sonia Sotomayor and Ketanji Brown Jackson are almost
exclusively about Black-white inequality and its systemic basis. If
you read their dissents and knew nothing else about affirmative
action, you might think it was exclusively aimed at raising the
representation of Black students in universities. As I suggested, the
commitments to diversity in higher education arise above all for that
reason.

In that light, the nation’s leading universities, with endowments in
the billions of dollars, ought to be thinking about other ways they
could legally advance the educational interests of Black Americans.
One way might be through partnerships with institutions that serve the
Black community. They could not just recruit from high schools and
community colleges with large numbers of Black students; they could
also provide resources and work closely with the schools in preparing
the students. In addition, they could build up joint programs and
degrees with the historically Black colleges and universities.

In his majority opinion, Chief Justice John Roberts wrote,
“Universities may not simply establish through application essays or
other means the regime we hold unlawful today.” Nothing I am
suggesting would re-establish the “regime” the Court was
prohibiting: the use of racial classifications in admissions.
Adversity-based affirmative action would mean admitting more students
of all races—white and Asian, Black, Hispanic, and Native
American—who pass a threshold for admission despite the adversities
they have faced. Partnerships with high schools, community colleges,
and HBCUs are entirely within the discretion of universities.

Rothstein argues
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because class-based affirmative action is insufficient, universities
should just defy the Court, continue to use race-based admissions, and
“accept legal consequences for their civil disobedience.” But no
university is going to engage in civil disobedience, and surreptitious
defiance is not likely to end well. The menu of alternatives I am
proposing is a more practical response to the Court.

During the debate about race-based affirmative action, many people
defending it said there was no substitute. That was understandable as
a defense, but now that race-conscious admissions have been
overturned, the effort should be to make the best of the situation. If
universities and other institutions respond constructively, they may
be able to find ways not just to offset the Court’s decision but to
do even better. The Court has the final word on the law. Those who are
committed to the purposes of affirmative action can still have the
final word on what happens as a result.

_PAUL STARR [[link removed]] is co-founder
and co-editor of The American Prospect, and professor of sociology
and public affairs at Princeton University. A winner of the Pulitzer
Prize for General Nonfiction and the Bancroft Prize in American
history, he is the author of eight books, including Entrenchment:
Wealth, Power, and the Constitution of Democratic Societies (Yale
University Press, May 2019)._

_Read the original article at Prospect.org.
[[link removed]] Used
with the permission. © The American Prospect, Prospect.org, 2023. All
rights reserved. Click here to support the Prospect's brand of
independent impact journalism. [[link removed]]_

* affirmative action
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* Supreme Court
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* racial inequality
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* economic inequality
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