What Biden Should Do About Affirmative Action
The Supreme Court's likely ruling gives him an opportunity to articulate an affirmative action policy that reminds working people of what they have in common rather than what divides them.
Sometime this month, the U.S. Supreme Court is widely expected to curtail or completely eliminate the ability of colleges to use racial preferences in admissions decisions in cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. For President Joe Biden, this ruling will create both an important obligation and an opportunity to help shape what comes next for affirmative action.
Because it matters who goes to selective colleges in the United States, Biden’s reaction will be important on the merits. Research finds that 50 percent of government leaders and 49 percent of corporate leaders come from just twelve universities. Biden needs to have a positive plan ready to ensure institutions that are feeders to America’s leadership class don’t re-segregate.
It’s also important politically, because he needs to do two things at once: reassure his most loyal black supporters that they have a path forward and signal to white working-class voters who are critical to the Democrats’ “Blue Wall” in the Midwest that the struggles their children face will also be recognized in any new form of college admissions.
Biden can do both by embracing affirmative action for the economically disadvantaged of all races—and by pledging that the federal government will provide the financial aid necessary to make it happen. A racially inclusive form of economic affirmative action was central to the thinking of one of Biden’s heroes, Dr. Martin Luther King Jr., who in the 1960s called for A Bill of Rights for the Disadvantaged—not a Bill of Rights for Black People. And it is in keeping with the thinking of another of Biden’s heroes, Robert F. Kennedy, who argued that “poverty is closer to the root of the problem than color…We have to convince the Negroes and the poor whites than they have common interests.”
Early in his career, Biden recognized that racial preference policies were politically divisive. As he argued in 1975, “I do not buy the concept, popular in the '60s, which said, ‘We have suppressed the black man for 300 years and the white man is now far ahead in the race for everything our society offers. In order to even the score, we must now give the black man a head start, or even hold the white man back, to even the race.’” More recently, however, as support for racial preferences became a litmus test for Democrats, Biden has embraced the practice, and he supported it in the Harvard and UNC litigation.
If his hand is forced by the U.S. Supreme Court, however, Biden will have the chance to revive the King and Kennedy approach—which is precisely where the American public has long stood. On the one hand, 74 percent of Americans oppose the consideration of race, according to a 2022 Pew Survey. On the other hand, Americans support the idea of taking affirmative steps to give a leg up to socioeconomically disadvantaged students of all races by two to one.
When the decision comes down, Biden should distance himself from extremist voices on the left and the right.
On the far left, some are actually calling for universities to simply disobey the Supreme Court. The normally smart and responsible Richard Rothstein, for example, writing in the normally smart and responsible Atlantic, flatly declared that in the face of a negative ruling, universities “should continue to implement race-specific affirmative action, in defiance of the Supreme Court.” Biden needs to make clear that he believes in the rule of law, and that while he may personally disagree with the decision it is the law of the land and will be respected.
In a nation where three quarters of Americans oppose racial preferences, moreover, Biden should refrain from the type of overheated language that posits analogies between a Supreme Court decision that forbids racial preferences and one that handed down the Dred Scott decision that treated black people as property rather than citizens or the Plessy v. Ferguson decision that sanctioned segregation.
Indeed, a ruling to curtail racial preferences will present a set of political dynamics vastly different than those that emerged after Supreme Court’s Dobbs decision to take away women's abortion rights. While Democrats gained politically from denouncing Dobbs, inflammatory rhetoric denouncing the Supreme Court on racial preferences could easily backfire and become part of cynical Republican presidential attack ads in 2024.
At the same time, Biden should forcefully denounce extremist advocates on the far right who say that it’s not enough to simply outlaw racial preferences. These activists now say they will also challenge plans (including those that use socioeconomic disadvantage rather than race in admissions) if even part of the goal is to increase racial diversity. That is a position that the U.S. Supreme Court has never endorsed. It is deeply punitive and is far outside the mainstream of public opinion. The public strongly supports affirmative efforts to boost racial and ethnic diversity without racial preferences, and Biden should stand ready to capitalize on any right-wing overreach.
A Two-Part Plan
Biden’s affirmative plan should have two key components.
First, he should encourage universities to voluntarily change admissions in a number of ways that will increase fairness overall as well as boost economic and racial diversity. As civil rights attorney John Brittain and I outlined in an article in the Chronicle of Higher Education last November, universities can take a host of steps above and beyond providing special consideration to economically disadvantaged students. Colleges should be encouraged to increase community college transfers, for instance, and shift money from non-need merit aid to those who actually need the funds.
Biden should also call on universities to eliminate legacy preferences, a practice akin to affirmative action for the rich and opposed by 75 percent of Americans. I served as an expert witness for the plaintiffs in the Harvard and UNC litigation, and simulations showed that if the universities adopted several of these steps they could promote robust levels of racial and economic diversity while maintaining high standards of excellence.
Second, Biden should announce a number of public policy proposals that will ease the transition from racial preferences to those for economically disadvantaged students for universities. Most obviously, Biden should propose greater federal financial support for impressive working-class students of all races who have overcome odds. One big reason universities have relied heavily on racial preferences is that it’s cheaper to admit well-off students of all colors than to provide financial aid to low-income and working-class students. Harvard and other rich universities can afford to do this on their own, but many will need greater federal and state financial support.
Michael Dannenberg, a former aide to Sen. Ted Kennedy (D-MA), has outlined a host of other significant ideas that would help, including:
Congress should outlaw legacy preferences at any institution receiving federal funding—which is virtually all of them—if universities don’t voluntarily eliminate them. The Fair College Admissions Students Act, sponsored by Sen. Jeff Merkley (D-OR) and Rep. Jamaal Bowman (D-NY), is one such approach.
Congress should pass legislation introduced by Sens. Chris Coons (D-DE) and Jacky Rosen (D-NV) which requires that universities have to contribute substantial funds to under-resourced schools (such as historically black colleges and universities) if they don’t enroll at least 15 percent of students from families eligible for Pell grants.
Biden should issue an executive order to direct agencies to provide bonus points to universities applying for competitive federal grants if they take significant steps toward increasing economic diversity.
Congress should impose a higher federal tax on endowments for colleges that don’t provide adequate access to working-class families and reduce the endowment tax for those who make significant progress.
A New Political Era
A post-racial preference era takes Democrats to far more favorable political terrain than they have had to grapple with in the past. For the past half century, Democrats have been on the defensive about racial preferences. They felt they had to support a deeply unpopular policy because black leaders (though not necessarily black rank and file voters) have passionately supported racial preferences. As a result, Democrats frequently had to dance awkwardly around the issue.
After suffering major setbacks in in the 1994 mid-term elections, for instance, President Bill Clinton questioned racial preference policies. As he said at a 1995 press conference, “I want us to emphasize need-based programs where we can because they work better and have a bigger impact and generate broader support.” But he quickly backed down when interest groups raised objections.
Likewise, during the 2008 presidential campaign, then-Sen. Barack Obama said his own daughters had economic privilege and did not deserve a racial preference in admissions. He also acknowledged that white people have “legitimate concerns" when they “hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed." During his administration, however, Obama filed an amicus brief in support of racial preference policies.
As the argument shifts to class-based affirmative action, it is Republicans who will be on the defensive. A GOP that has gleefully exploited the unpopularity of racial preferences for its own political gain will watch as that issue fades into the background. Republicans will be torn between their instinct not to spend money on financial aid and the reality that if they strongly oppose class-based affirmative action their effort to win working-class white and Hispanic voters could falter.
In strongly endorsing class-based affirmative action policies that will disproportionately benefit black and Hispanic students, Biden can reassure black and Hispanic voters that the nation needs their children’s talents. At the same time, Biden can emphasize that under the new forms of economic affirmative action, working-class white and Asian students will benefit too.
On one level, a Supreme Court decision ending racial preferences presents a crisis. Simply ending racial programs without coming up with something new would devastate black and Hispanic constituencies and be terrible for the country. But Democrats also will have been handed an opportunity to create something better—an affirmative action policy that reminds working people of what they have in common, not what divides them.
Richard D. Kahlenberg is an education and housing policy consultant and a nonresident scholar at Georgetown University. He is working on a book for PublicAffairs entitled, Class Matters: Imagining a Fairer and Less Divisive Future for Higher Education.