Editor’s note: This essay is based on a talk given by Gail Heriot on October 29, 2021, for the Martin Center in Raleigh, North Carolina.
Ladies and gentlemen, if you’re here tonight, it’s because you are concerned that our colleges and universities aren’t doing so well. Maybe you’re even very concerned.
Well … I hate to be the one to have to say it, but it’s worse than you probably think.
Remember when we used to fret about grade inflation? At least then nobody was arguing that grading students (or for that matter the whole concept of academic excellence) was racist and colonialist.”
Remember when political correctness was just deeply annoying? Those were the good old days, ladies and gentlemen. On today’s “woke” campuses, it’s not just that someone might wag a finger at you for saying the wrong thing. These days expressing “wrongthink” can (and does) ruin careers. Faculty members and students: Everyone needs to watch what they say on matters of race or sex. And almost everything is thought to somehow relate to race or sex.
And it’s not just what you can’t say: It’s what you must believe on many campuses that can be most astonishing: Like a man who thinks of himself as a woman actually is a woman and has a legal and constitutional right to play on the women’s volleyball team. If you disagree you’re a hater even if you’re otherwise quite libertarian on the subject. Or white people are too hung up on the belief that there are right and wrong answers … in basic math. And if you disagree it’s because of your white fragility: Indeed, even if you’re not white, it’s because of your white fragility.
It’s weirdly backward: Getting hung up on right or wrong answers in arithmetic is considered bad. On the other hand, a rigid orthodoxy reigns over things that are genuinely contestable—things that can benefit from hearing all sides of the question—like criminal justice policy, immigration policy, or whether Christopher Columbus was a hero or a villain. Only woke answers are safe to express. And somehow woke answers always reduce everything to an issue of oppressor and victim (and almost always to race).
How did all this happen? In particular, how did higher education get so race obsessed?
Well, let’s talk about that: Colleges and universities have been telling students and faculty that race is the most important thing about them for a long time now. Why should anybody be surprised that after all these years they believe it?
Had they stuck to their principles—that race discrimination is wrong, that people should be judged as individuals and not as racial groups—we would have far fewer problems on campuses today.There was a brief moment in the mid-1960s—right after the 1964 Civil Rights Act—where the nation finally got beyond Jim Crow and adopted a policy of equal treatment regardless of race or ethnicity. It passed a democratically elected Congress. And polls at the time showed most Americans were fully behind it.
Then quickly discrimination in favor of African Americans became fashionable on campuses. Soon thereafter it became fashionable for other “under-represented” minorities too. Despite clear law forbidding it and clear public opinion opposing it, the courts declined to intervene.
Over the last half century, some Americans have assumed that these preferences were just a tiny thumb on the scale in otherwise close cases. But from the start, they were strong preferences. For example, in the early 2000s, at the University of Michigan, an African American with a straight B average in high school was treated the same for admissions purposes as a white or Asian student with straight As, all other things being equal. Straight Bs, straight As. That’s not close.
So, if you want to know why woke students and faculty think race is so important, that’s been the message for many decades.
Don’t get me wrong on this: I believe those who originated these policies were well meaning. They wanted to integrate more African Americans into the mainstream as quickly as possible. They thought they were trying to get beyond race. But there were early warning signs that race-preferential admissions policies were causing students to become preoccupied with race rather than get beyond it. Those warnings were largely ignored.
One such warning came from the demands—starting in the late 1960s—for racial separatism on campus. African American students who were part of affirmative action programs at schools like Cornell, MIT and Yale demanded separate dormitories. As time went on the demands included separate student lounges, and separate graduation ceremonies, and sometimes specially designed academic departments or programs.
Bad sign. Things were going in the opposite direction from what was intended—and would eventually devolve into demands for safe spaces.
In a way we can all understand why one university after another gave into such calls. Saying yes is so much easier than saying no. It keeps the peace. Saying yes to pressure for further race-preferential admissions and faculty hiring was also easy. But it has created long-term problems that are harder to solve now than they would have been decades ago. Not surprisingly, the demands for separate dorms and lounges, and safe spaces spread to Latino students, American Indian students and now Asian students too.
Here’s the most important point I want to make tonight: Some people think that given all the affirmative action that has occurred over the last 50-plus years, our current preoccupation with race is somehow surprising. “Haven’t we been doing enough?” they might ask. But our current situation didn’t happen despite the race-preferential admissions policies. They happened in significant part because of race-preferential admissions.
Obviously, many things contributed to the situation we’re in now. But I believe one of the most important wrong turns (maybe the most important one) was when universities adopted what they then called affirmative action admissions standards. Had they stuck to their principles—that race discrimination is wrong, that people should be judged as individuals and not as racial groups—we would have far fewer problems on campuses today. Things would have evolved very differently. They wouldn’t be perfect, but I believe much better.
None of this is easy to talk about these days. But please bear with me as I try to take it step by step.
The fateful decision more than fifty years ago was to lower admissions standards for African Americans at elite colleges and universities, and soon thereafter (though to a lesser degree) Hispanic students. The aim was to increase the number of minority students on those campuses and ultimately to promote their integration into high-status careers.
When it first started, most of these college and university administrators and faculty members almost certainly believed in the principle of colorblindness. (By contrast, today, advocates of colorblindness are often accused of being racist.) But back then they thought they could compromise that principle for just a little while … for a good cause. They hoped they could jump start the long overdue business of integrating African Americans into the mainstream and then go back to the principle of colorblindness in just a short period.
But that deviation from principle had an important consequence. It meant that on average the academic credentials of underrepresented minority students on any given campus would be below average for that campus—even though those minority students might be excellent students compared to college students generally. That might sound like no big deal, but it’s a very big deal indeed.
I am sad to report that very few prominent conservatives or centrists spoke up in favor of the principle of non-discrimination back when this was getting started.
Instead, the most prominent voices against race-preferential admissions back in the early days came from liberals.
Take Justice William O. Douglas. He was no conservative. He was a big government, New-Deal progressive, but to his credit, he’d also been a champion of civil rights and an enemy of Jim Crow. Douglas took the unusual step of dissenting—quite eloquently—when the Supreme Court spinelessly declined to hear DeFunis v. Odegaard—an early case concerning affirmative action admissions.
Even more impressive was California Supreme Court Justice Stanley Mosk. Up to then, he’d always been a liberal’s liberal, but that included standing up against race discrimination (as liberals did back in the day). When faced with the argument that discrimination in favor of some races is okay, he was appalled.
The case was Bakke v. the University of California Board of Regents. It came before the California Supreme Court in 1976. Allan Bakke was a white Vietnam Vet—a medic—who desperately wanted to go to medical school. He was hardly a child of privilege; his father was a mailman for goodness sake. Despite having college grades and standardized tests scores that were much higher than the 16 minority students who were admitted instead, Bakke was denied entry.
Writing for the majority of the California Supreme Court, Mosk called the UC Davis medical school admissions policy a “dubious expediency.” I like that term. I put it in the title of an anthology I co- edited recently and the title to this talk. A dubious expediency. That about sums it up. Universities thought they were engaging in a good kind of race discrimination—a temporary short cut to a more just world. But it turned out there is no such things as a “good kind” of race discrimination.
Mosk’s full quote was as follows:
To uphold the university would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.
Justice Mosk—bless him—understood something basic about race discrimination. Throughout history, the temptation to engage in it has almost always come packaged with a justification that many found appealing at the time. But whenever the country has succumbed to that temptation, it has almost always come to regret it. By 1976, when Mosk was writing, we owed it to ourselves to be a lot more skeptical.
Mosk’s decision was instantly denounced by angry affirmative-action supporters. When he visited campuses, he routinely found himself greeted by picketers and hecklers. Mosk himself was undaunted. I’m quoting him here: “Judges in California cannot be intimidated,” he stated. “Lawsuits are won and lost in the courtrooms,” he said, “not on the streets.” You gotta love him.
Alas, Mosk’s vision of civil rights did not prevail. His opinion was soon superseded by a decision of the U.S. Supreme Court. In that fractured decision, four justices were apparently untroubled by the UC’s race discrimination, four thought it a clear violation of the law. One justice—conservative Lewis Powell—a guy who didn’t like conflict, was the man in the middle. Powell didn’t want to see protests. He tied himself in knots to come up with a way that Bakke could win his case, but that universities could continue to discriminate by race. He ended up essentially saying that the UC could discriminate all it wants as long as (1) it’s doing so for the sake of diversity, and (2) it isn’t setting aside a specific number of seats in the class for racial minorities.
If this research is correct (and I think it is), we would have more African American scientists, physicians, dentists and engineers if elite colleges and universities had engaged in racial-neutral admissions.With that, Bakke technically won his case, since the UC had set aside a certain number of seats. But the door was wide open for using very different admissions standards for students of different races ….
Powell went for the dubious expediency. He avoided short-term unpleasantness. But he created long-term problems. This was a pattern that would be later followed by two more center-right Supreme Court members—Sandra Day O’Connor in Grutter v. Bollinger in 2003 and by Anthony Kennedy in Fisher v. University of Texas in 2016.
The long-term problem created was huge … and complex. First of all, Powell’s diversity rationale created an incentive for minority students to dwell on their differences. That was the whole point of it—that when students are different from each other they learn from each other. So they have to be sure to be different.
More importantly, Powell institutionalized a policy under which under-represented minority students who received an affirmative action bump would be spending their college years competing against students with much better academic credentials. That has had serious consequences.
As I’m sure you know, there are terrific students of all races and ethnicities. But there are fewer under-represented minority students who would be admitted to the very top schools based on their own academic credentials than anybody would like. If that weren’t true we wouldn’t ever have started down the road of race-preferential admissions.
Everybody I know would like to remedy the problem. But pretending there isn’t a problem and just admitting students anyway isn’t the way to do it.
You hear a lot about “systemic” problems today, but this really is systemic. When schools that are highest on the academic ladder relax their admissions policies in order to admit more under-represented minority students, schools one rung down must do likewise or they will have far fewer underrepresented minority students than they would have had under a general race-neutral policy. The problem is thus passed on to the schools another rung down, which respond similarly. As a result, students from under-represented minorities today are concentrated at the bottom of the distribution of entering academic credentials at almost all selective colleges and universities.
I don’t mind repeating that the problem isn’t that there are no academically gifted African American or Hispanic students seeking admission to colleges and universities. There are many—but not enough at the top tiers to satisfy the demand, and the efforts to change that have had a pernicious effect up and down the academic pecking order.
Unfortunately, a student whose entering credentials are well below those of the average student in a particular school will likely earn grades to match. This is true whether the preference received was based on race, athletic talent, or parents’ alumni status, wealth, or political clout. The reason is simple: Entering credentials matter. While some students will outperform their academic credentials, just as some will underperform theirs, most students will perform in the range that their entering credentials suggest.
No serious person disputes that affirmative action beneficiaries on average get low grades. The late William Bowen and Derek Bok, both former Ivy League university presidents and two of the strongest apologists of racial preferences in admissions—they helped create the system—have admitted candidly that African American grades in college are, on average, “startlingly low.” Those are their words.
The “college grades gap” created a lot of the pressure for grade inflation and for a watered down curriculum in the late 1970s, 80s and 90s.
And it has still deeper effects—effects on campus culture. Somebody has to be at the bottom of every class. But if it’s you and nearly all the people who you think are most like you, you might start thinking there’s something wrong. You might conclude, “Hey it’s all politics,” “the standards by which people are judged here are corrupt,” or even “the teacher must be a racist.” Not all minority students will think that way, but some will, and a few may get consumed with it. Overall it’s bound to have an impact on campus culture. Fifty years of this has taken its toll.
One thing you might expect for this is that some minority members will start thinking “I want to hang out more with people like me”. This almost certainly has something to do with the pressure for campus separatism and safe spaces generally. I believe a lot to do with it.
It is entirely possible—likely in my view—that this had something to do with the rise of political correctness and even of hate speech codes on campuses in the late 1980s. When students aren’t doing well in their studies, when they feel a little out of place, when they worry that they are being viewed as tokens, they just may start getting a bit sensitive.
But let me switch gears here. Because there’s an even bigger problem with race-preferential admissions. For many years now there has been strong evidence that these policies just plain don’t work. Rather than helping under-represented minority students get into high-prestige careers, research shows that they are doing the opposite. They are hindering them. If this research is correct (and I think it is), we would have more African American scientists, physicians, dentists and engineers if elite colleges and universities had engaged in racial-neutral admissions.
The evidence is strongest in the area of science and engineering, so that’s what I’ll mostly tell you about. But the evidence isn’t confined to science and engineering. We’d very likely have more college professors generally. Getting good grades in college makes students more enthusiastic about going to grad school. More lawyers too.
But let me talk about STEM. Many students—of all races—who start out majoring in STEM eventually switch to something easier. Some drop out of school altogether, and a few even flunk out. It should surprise no one that those who fail to attain their goal of a STEM degree are disproportionately students whose entering academic credentials put them toward the bottom of their college class. Not all stereotypes about STEM students are accurate, but the notion that they tend to be highly credentialed and hard working is largely on target. They have to be.
What does surprise some is this: Several unrebutted empirical studies have demonstrated that part of the effect is relative. An aspiring science or engineering major who attends a school where her entering academic credentials put her in the middle or toward the top of her class is more likely to succeed than otherwise identical students attending a more elite school where those same credentials place her toward the bottom of the class. Put differently, an aspiring science or engineering major would be smart to attend a school where her entering credentials compare favorably with those of her classmates. Affirmative action preferences hurt, they don’t help.
The students who get into top STEM schools like MIT and Cal Tech on the basis of a preference are still very impressive students. But they are competing against students from around the world who have been living and breathing science and engineering since they were in elementary school—teenaged rocket scientists. In other words, preference recipients may be enrolling in one of the only schools on the Planet Earth where they would wind up as a public relations major. There’s nothing wrong with being a public relations major. But that wasn’t their dream. They went to MIT or Cal Tech to become a doctor or a computer scientist. The system failed them.
As I’ve said, three conservative Supreme Court justices—first Powell, then Sandra Day O’Connor and then Anthony Kennedy all had the opportunity to end an end to this. All three took the easy way out—refusing to uphold the basic principle that states should not discriminate on the basis of race. As a result, the system became more and more entrenched. A large diversity bureaucracy now supports it.
Maybe, just maybe the Court will take the issue up this upcoming year in the form of the lawsuit—Students for Fair Admissions v. Harvard. The new wrinkle in that case is that the worst of the discrimination turns out to be against Asian Americans, not whites. To attend the college of their choice, they must be that much better than under-represented minority students and that much better than whites too.
I wonder if Powell, O’Connor, and Kennedy saw that coming. I’m crossing my fingers that the Court will take the case … or the UNC case that may be ready in another year or so.
But there are things that can be done even if the Supreme Court declines to take either case. And I don’t just mean resisting the many manifestations of wokeness on campus today. That has to be done too, of course. Donors and legislators need to stop funding woke schools and programs. Alumni need to voice their displeasure. When speakers are unfairly de-platformed, we need to make sure they get a bigger and better platform.
But we also need to do something about the roots of wokeness—with race-preferential admissions being the single most important thing on the list.
In California, 25 years ago, we passed Proposition 209, which amended the state constitution to say: “The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, color, sex, ethnicity or national origin in the operation of public employment, public education or public contracting.” Those words reflect one of the country’s core values—equal treatment under the law. I am therefore proud that I was second only to our Chairman—UC Regent Ward Connerly—in the leadership of that campaign.
The effects on the University of California system—at least at first were amazing. According to a study done by Duke University’s Peter Arcidiacono, when Proposition 209 went into effect, it helped close the entering credentials gap between African American students and white or Asian students. As a result, system-wide, grades went up for African American students. So did the number who majored in science or engineering. And so did graduation rates.
Think about how hard it is to achieve all three of those goals at the same time. STEM courses are usually graded more harshly than, say, English Literature courses. For the number of STEM majors to increase at the same time that grade point averages are going up is no mean feat.
Over the years the University of California has tried to get around Prop 209. But they’ve never been able to get around Prop 209 entirely. That’s why last year the California Legislature knocked itself out to repeal Proposition 209. Fortunately it had to be put to a vote of the people. The old Prop 209 gang as well as some new faces put a campaign together to fight the repeal as fast as we could.
Mind you that in the quarter of a century that had passed California had gone from being a two-party state to a state that leans so far to the left that it seems like it could fall over into the deep-blue Pacific. Everyone told us we didn’t have a chance. The only question was how badly we’d lose. And because it was so obvious that we would lose, many otherwise sympathetic potential donors were unwilling to give us a nickel. Why risk being canceled? As a result, our opponents had something like 16 times more money than we had.
But miracle of miracles, it turned that the money didn’t matter so much. They had the big money and the mainstream media, but we had the fundamental American principle of equality before the law and the dedicated volunteers, many of whom were concerned Asian American parents. Ultimately, therefore, we had voters. Together, we defeated the repeal effort. It wasn’t close. Even in deep blue California, voters oppose preferential treatment based on race or sex.
North Carolina doesn’t have a citizen initiative system like California’s. So it cannot follow in the footsteps of Washington State, Michigan, Nebraska, Arizona, all of which have followed California. But it can amend the state constitution through a referendum process whereby the state legislature puts the process in motion and voters must ultimately decide. And as many of you know, that course of action is currently being considered.
Note that it would not prevent North Carolina state universities from lending an extra hand to students on the basis of economic disadvantage—black, white, Asian, Latino—whoever needs the help. Personally, I believe the best thing that can be done for economically disadvantaged schools is to keep the costs down for them. College is entirely too expensive … too many frills … way too many administrators.
I hope that the North Carolina legislature gives such a constitutional amendment the consideration it deserves.
Here’s my bottom line: Until Americans start looking at the roots of identity politics, woke identity politics will be with us. And it will be destructive not just of academic values, it will be destructive of the deeply American values of equal treatment under the law and of free expression.
Nothing we can do at this point will fix the problem quickly. It took 50 years to get us to the point where we are today and it might take 50 years to get us out. Fifty years of cowardice and unwillingness to stand up for principle may well require 50 years of courage and firm devotion to the principle of equal protection under the law to counteract.
It’s long past time that we got started.
Gail Heriot is Professor of Law at the University of San Diego. She is currently a member of the United States Commission on Civil Rights. She was an editor of the University of Chicago Law Review. She is also a member of Phi Beta Kappa and Order of the Coif. She sits on the board of directors of the National Association of Scholars and the California Association of Scholars. She is editor and co-author of A Dubious Expediency: How Race Preferences Harm Higher Education.