Here we go again. Every few years, the debate over affirmative action is resurrected and the accusations of “reverse racism,” the myth of an American meritocracy, and the role of race and class return to fight another day. Now affirmative action is back in the news after the New York Times reported that an internal document was distributed to Justice Department officials in the civil rights department seeking lawyers to pursue “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” The Justice Department has been involved in such cases during the Reagan administration as well as both Bush administrations, so it’s not too much of a surprise that under Sessions the DOJ would again involve itself in race-conscious admissions policies. Since the initial New York Times story was published, the Justice Department has clarified that they intend to investigate claims that some of these admissions policies, at schools such as Harvard, have a discriminatory effect on Asian-American students. We’ll come back to Harvard later, but first let’s take a step back for a moment to talk about what affirmative action in college admissions actually is and what it is not. 

Race-conscious admissions is a type of affirmative action intended to build more diverse campuses and provide greater opportunities to disadvantaged minorities. Affirmative action is not, as apparently many people believe, a policy that provides a free college education for black students (black students actually tend to graduate with more debt than their white counterparts). It simply allows colleges in many states to consider race as one of many factors in the admissions process. The practice is also not as common as it once was. Race-based admission policies have markedly decreased in the past twenty years and only effect a small percentage of students these days. Most of America’s over 4,700 schools are not considered “selective,” which is to say they accept more than 85 percent of their applicants. In 1994, 60 percent of the selective schools considered race in their admissions process. Today, only around 35 percent consider race. Race-based consideration is most popular amongst the 63 colleges deemed the “most competitive.” In 1994, 93 percent of those “most competitive” schools considered race; today it is 88 percent. Ultimately, affirmative action is only an issue at the top universities, for around 6 percent of students nationwide. It cannot be ignored, however, that these prestigious and competitive colleges are often the gateway to prestigious and competitive jobs in government, media and powerful corporations — the gateway to the echelons of power that are still largely populated by wealthy white men.

The Supreme Court has taken on several cases on this particular issue, starting with Regents of the University of California vs. Bakke in 1978. The Court has repeatedly held that race can be considered in the admissions process so long as quotas are not used, that race is only one of many factors under consideration, and that diversity is a compelling interest — which it clearly is, when you’re talking about the most selective schools funneling their graduates into top-tier careers. The last round of this fight was only a year ago when the Supreme Court sided with the University of Texas in a suit brought by the now infamous “Becky with the Bad Grades” Abigail Fisher, a case that was bankrolled by anti-affirmative action advocate Edward Blum (Blum is also bankrolling the plaintiff in the Harvard case). Fisher claimed that she was not admitted to UT because she was white, and that her spot was taken by minority students. In fact, she was not admitted because she did not meet the academic requirements, rather than on the basis of her race. The Court upheld previous rulings and determined that UT was allowed to use race as one of many factors in a “holistic admissions” process.

Other factors considered by these colleges include academic achievement in the form of grades and standardized test scores, athletic and artistic prowess, commitment to public service, overcoming difficult life circumstances, and legacy status. Many of these factors privilege wealthier students. Obviously, legacy status — that is, if one of your parents went to Harvard you have a better chance of getting in yourself — continues to have significant sway over the admissions process in the present day. Alternatively, money always talks — ask Jared Kushner, whose father paid $2.5 million to get him into Harvard. Despite that according to an administrator at Kushner’s high school, “There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard… His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted.” A very rich parent is always a great way to get into a school when you don’t have the grades. Similarly, standardized tests have repeatedly been demonstrated to carry their own bias as well, as white students generally perform better on these exams than black and Latinx students, especially those who speak English as a second language. Wealthier students also tend to do better on such exams, as their parents can afford expensive test preparation courses and/or multiple attempts at expensive exams. Middle and upper-class students are more likely to have the free time and transportation to volunteer or otherwise engage in community services. It’s difficult to be involved in extracurricular activities or volunteer work when your family is counting on your paycheck as well as your parents. Athletic and music training also require time and money that many low-income students just don’t have.

These socio-economic factors apply across racial lines as well. Students of color that attend these highly selective colleges are more often from wealthier families and elite backgrounds as well. While people of all groups experience poverty, in general, white and Asian-American families tend to have higher incomes than black and a Latinx families. This is the primary issue with the lawsuit against Harvard. The data being utilized by Blum’s plaintiff compares only test scores, and no other factors when analyzing admissions for Asian-Americans, and have been accused of ignoring Asian-American populations that benefit from affirmative action policies. Other experts in affirmative action law and race studies doubt the sincerity of Blum’s and the DOJ’s sudden concern for Asian-Americans. For many, the claims made by Blum and the DOJ come across as an unconvincing smokescreen to justify rolling back efforts at racial equality so as to reassert the dominance of and preference for white men in the college admissions process.

Class-based affirmative action systems have been considered with these myriad factors and concerns in mind, but they ultimately result in reduction in black and Latinx enrollment. Despite that black and Latinx families are more likely to live in poverty, their smaller respective percentages when compared to the population mean that there are more white families living in poverty as a whole, just not as a percentage of their populations. This results in an admission preference for white students at the expense of black and Latinx students in the absence of race-conscious admissions. The goal of affirmative action in college admissions is to mitigate some of the damage done to minority populations by Jim Crow policies, redlining, blockbusting, hiring and education discrimination, and other injustices to level the field a little bit every generation until that one magical day where we live in the color blind society that conservatives believe we already do and such policies become unnecessary. A combination of race-conscious and class-conscious admissions are necessary to level that playing field, even if it means Abigail Fisher had to go to LSU instead of UT, or Jared Kushner doesn’t get a spot at Harvard as a result of his father’s influence with cold hard cash.