The U.S. Supreme Court will this fall hear challenges to the admissions policies at Harvard University and the University of North Carolina at Chapel Hill on their use of affirmative action. Critics say the colleges should not be allowed to consider race. For Gary Orfield, that is not what the Supreme Court should do. A professor of education, law, political science and urban planning at the University of California, Los Angeles, where he co-directs the Civil Rights Project (a research center), Orfield is a proponent of affirmative action and a variety of other policies to help all students. In The Walls Around Opportunity: The Failure of Colorblind Policy for Higher Education (Princeton University Press), he outlines why.
He responded via email to questions about the book.
Q: You have a chapter on the tradition of exclusion. Why is it important to remind people of that? Are there any points you made in that chapter that are particularly relevant?
A: Affirmative action opponents often assume that everything could be and once was fine without any color-conscious policies. Since it is now nearly 60 years since the peak of the civil rights movement, which initiated color-conscious policies across higher education, people don’t know what the landscape of selective colleges was before this change. When I went to my first faculty position at the University of Virginia, the student body was four-tenths of 1 percent Black in a state where about 30 percent of students were Black. There were 1 or 2 percent students of color in many of the very best U.S. universities in the early 1960s. In the 19 states (serving a large majority of the nation’s Black students) that had separate public colleges for Black students, the student bodies at the flagship campuses were almost all white. This only changed with the civil rights revolution and the widespread adoption of race-conscious policies. The 1964 Civil Rights Act and court orders to the Nixon administration to enforce it began significant change in a number of states with a history of de jure segregation.
The tradition was not benign. It was exclusion. When I was a student leader at the University of Minnesota, I found that we had only 12 Indian students in a state with big reservations. Most fraternities were segregated by policy. We need to think about how things really were when we think about abandoning race-conscious policies that the great majority of selective institutions believe to be essential. It is important to acknowledge that our institutions and policies developed an almost all-white higher education system that was only changed by a movement or, in many cases, by law and court orders. Our public schools were and are so profoundly unequal, and there had been so little impetus for real change for generations, that it took a strong outside jolt from government or mobilization to do something about bringing students from weak schools to college. Most selective colleges now have been operating a color-conscious admissions process for more than a half century, which has still left students of color severely underrepresented. Without it, things will get worse. The past was bad, and the default will be bad.
Q: You describe Black-white segregation growing again in high schools. How did this happen?
A: Two basic forces are at play. One is the enormous demographic changes in our population and school enrollment. There is a much smaller proportion of whites and many more Latinos among the young. The other is the dismantling of the serious and sometimes very successful desegregation efforts that had made the South the most integrated part of American education. Supreme Court decisions in the 1990s led to loss of desegregation plans, and most education authorities did little or nothing to offset resegregation.
Although most Blacks in many metro regions now live in suburbs, school segregation has increased. Choice plans without explicit diversity policies tend to foster race and class stratification. The Latino college-age population has increased exponentially, and Latino students are isolated in inferior concentrated-poverty public schools. The peak of integration was more than a third of a century ago. Resegregation is caused by ignoring spreading segregation, lack of housing integration policies and simply letting segregation expand in the suburbs as it did in the cities in the last century. The only major federal support for the education changes that facilitate desegregation ended in 1981, the first Reagan budget. We are betting on separate but equal, but the Supreme Court decided back in 1973 that there is no constitutional right to equal resources.
Under the Supreme Court’s decisions in 1991 and 1992, almost all major desegregation plans have been dissolved and, under the 2007 Parents Involved decision, many voluntary desegregation efforts were forbidden. The federal government has deeply subsidized the spread of charter schools, which are usually highly segregated and lack civil rights policies, while severely reducing support for magnet schools, which can be far more integrated.
Q: Toward the end of the book, you describe strategies that work. Would you please discuss one of them and why you included it?
A: One of the central themes of the book is that if we are going to address equity in higher education seriously, the strategy cannot be limited to colleges but must deeply involve high schools. I discuss many elements and strategies that could help repair leaks or big breaks in the pipeline to college. One underlying problem is the growing segregation of students of color in segregated and very unequal high schools. There are many issues that must be addressed within high schools that I discuss, but one that has been neglected almost everywhere is creating serious access for students in inferior schools to some of the great public high schools in our metro areas. We have excellent high schools, many in suburbs, that prepare students well for college and have space available as communities age and family size shrinks. We should create policies to fund access to those schools to students in segregated low-performing schools in our big cities and resegregated suburbs. Regional magnet schools have been successful in Connecticut’s metros and should be implemented elsewhere. Our state governments and universities should create excellent schools in central cities that have default college-going curricula delivered at a competitive level by experienced teachers. In other words, within a system of extreme inequality, one essential step is to share some of the very successful schools we have and create more.
Q: How would you make the case to the Supreme Court in the Harvard and UNC cases for not being all colorblind?
A: The first essential element is the powerful evidence that there is no workable alternative. If the court cares about the effect and accepts long-established rulings based on solid research that there is a compelling educational interest in diversity, that should be determinative. In both the University of Michigan cases and the University of Texas cases, conservative justices recognized the powerful evidence of the benefits of diversity for all students. Alternative strategies to get it are far more expensive, beyond the budgets of most schools and far less effective than affirmative action. Opponents of affirmative action tend to assume that there is a workable alternative, such as the 10 percent plan or affirmative action for poverty (which most affirmative-action colleges already do practice), but the evidence shows this is wrong.
If the court majority does not care about impacts, obviously there is a very important argument about history before, during and after-race conscious policies. Was the 14th Amendment, passed during Reconstruction, actually designed to protect whites and to forbid targeted efforts to help Blacks? Historians need to address this. There is another important issue reflected in earlier decisions about the importance of respecting the autonomy and professional judgment of faculties about admissions, one of the universities’ most important powers. Should nonelected judges forbid colleges to construct classes that intentionally bring together separate sectors of a very stratified and racially divided society?
Q: What will higher education look like if the Supreme Court rules against Harvard and UNC?
A: It depends on how they would rule. If it is an absolute sweeping conclusion that any consideration of race is simply unconstitutional, as suggested in the chief justice’s opinion in the Texas case, then there would be a decline in minority representation and, perhaps, faculty hiring, and the entire climate for race-conscious action to deal with systemic problems would be severely undermined, perhaps for a long time. Under such a decision, colleges that continued to use race in any way would be violating the Constitution and the Civil Rights Act and could lose all federal aid, including student aid, and be sued by the Justice Department. Unless the court is expanded, a hostile majority is very likely to be there for the rest of the lives of many reading this. Plessy’s separate-but-equal policy lasted for nearly 60 years before Brown. Harvard estimated that it would have a decline of over 40 percent of students from underrepresented groups.
If there were a more modest decision, it might raise the standard of proof for colleges that wished to continue their programs, which would create a burden and, probably, very different decisions from different judges in differing circumstances. This seems unlikely, since the use of race is already very constrained and this is an ideologically driven court.
Colleges that gave the issue of minority representation a high priority might well engage in efforts sensitive to the realities of race, like the University of California has for 25 years, that would try at great expense to make up for part of the damage. I think that, given the inappropriate use of test data in this litigation, colleges would be unlikely to restore admissions testing.
We are a society that has created excellent pathways to some of the world’s best colleges for our most privileged white and Asian families, has concentrated most of its Black and Latino and Native students in colleges with weaker curriculums and faculties segregated by race and poverty that don’t prepare students adequately for college. Our conservative Supreme Court’s decisions have dissolved our significant desegregation efforts. Fifty-five years of federal funding for compensatory education and state reforms requiring more courses have failed to produce any kind of equality. I think that one essential first step is opening the doors to our strong high schools to more of the students who have been denied a fair chance.
Colleges could play a role, creating or controlling strong academic schools with race and class integration in urban areas, schools where high-level college preparation is the default. State education authorities could organize and finance transfer for students, and regional magnet school policies, like those in Connecticut metro areas, could create more opportunities. This would use the current enthusiasm for school choice, which too often has funded exit of whites from diverse communities, to begin to build strong new channels to college while giving students from all backgrounds more opportunities for positive, diverse educational experiences needed when growing up in a very unequal multiracial society where everyone will be a minority.