In recent trial testimony, Harvard and other selective schools claim that the only way they can maintain adequate racial diversity is to use large racial preferences to admit a great many more black (and brown) students than would otherwise get in based on their academic performance.

A person of ordinary curiosity might wonder: Why is that? Just what is the state of black academic performance, after more than 40 years of racial preferences? Is it improving? How soon might significantly more black students gain enough ground on whites and Asian-Americans to win admission to selective universities based on merit? And what about the Supreme Court’s unanimous assertion in 2003 that “[e]nshrining a permanent justification for racial preferences” would be unconstitutional?

The news media, like the universities, do not ask questions like these because they cannot accept honest answers, which include the following inconvenient truths:

–The state of average black academic achievement, from kindergarten through graduate schools, is extremely discouraging — far behind that of Asian-Americans and whites, and substantially behind that of Latinos.

–Worse, black academic achievement in K-12 schools has not improved noticeably relative to that of whites or Asian-Americans in about 30 years, and has in some ways deteriorated, despite the growth of the black middle class. There is little reason to believe this will change in the foreseeable future.

–For those reasons, the tacit meaning of “diversity” has morphed into “racial preferences forever” in the minds of many university officials and journalists

These well-documented but disheartening facts are treated as taboo by academia, the media, and other establishment institutions. But the taboo is unhealthy. “Closing the racial achievement gap is the most important civil rights battle of the twenty-first century,” as the distinguished African-American Harvard sociologist Roland Fryer wrote in 2012.

And as long as the nation shrinks from facing the racial academic gaps, they will persist, and perhaps grow larger – as did the white-black gap in 12th grade reading between 1992 and 2015 (the last year for which comparative data are available).

The racial gaps make it imperative to find effective ways to improve the academic achievement of black (and Latino) children – and to end policies that may make hold kids back or diminish their incentives to excel academically.

In this regard, there is evidence suggesting that far from being part of the solution, racial preferences in college admissions are part of the problem with K-12 black education.

A few decades ago, it was widely assumed that better education, the expanding black middle class, and racial preferences themselves would bring the academic performance of black (and other minority) students closer to parity with that of whites and Asian-Americans. Racial preferences were viewed as a temporary expedient that would fade away.

But these hopes looked forlorn as long ago as 2003, when Justice Sandra Day O’Connor wrote for herself and four other justices in Grutter v. Bollinger: “[T]he number of minority applicants with high grades and test scores has indeed increased. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further” racial diversity in selective college enrollments.

The claimed increase in high-end achievement by minority applicants was wishful thinking, for which Justice O’Connor cited no data and not one serious study. As I wrote in 2003, at the time there was “overwhelming evidence that the racial academic gap [was] enormous and … [had] been growing for the past 15 years [since about 1988].

This reversed a trend of rapid progress in closing the racial gaps from the 1950s until about 1988. But over the three decades since 1988, there has been no significant decline in the test score gap between both black and Hispanic high school seniors and their white counterparts.

There are, of course, many brilliant black students and leaders. And most black and Latino students at Harvard and other elite schools have academic records much stronger than those of most white students at less selective colleges. But the vast majority of African-American students (and to a lesser extent Latinos) are not academically prepared to do well either in high school or in the highly selective colleges eager to recruit them. The big question is why.

Racial academic gaps are not shrinking despite decades of racial preferences

Still more disheartening than the size of the racial gaps is the ample evidence that they have not gotten appreciably smaller in some three decades.

“Even after decades of affirmative action, black and Hispanic students are more underrepresented at the nation’s top colleges and universities than they were 35 years ago, according to a 2017 New York Times analysis. The share of black freshmen at elite schools is virtually unchanged since 1980. Black students are just 6 percent of freshmen but 15 percent of college-age Americans.”

(The paper said that blacks and Hispanics have gained more ground at less selective colleges and universities.)

Strikingly, the Times did not explicitly acknowledge or quantify the vast racial gaps in academic performance, such as the fact that the average black 12th-grader is academically at the same level as the average white eighth-grader. And not a word about the massive evidence that the home environments of so many African-American kids are not conducive to education.

Nor did the Times attempt to explain, other than blaming unequal K-12 schools, how decades of increased public school spending and of racial preferences in college admissions could have failed so utterly to bring even relatively prosperous black students — or their children – much closer to academic parity with whites and Asian-Americans by age 18.

By all available measures, despite the emergence of a black middle class, the most recent data suggest that the racial academic performance gaps among 18-year-olds applying to college are as large on average as they were about three decades ago. The black-white test score gap among high school seniors in contemporary America is comparable to the gap between 13- and 17-year-olds.

Disappointing NAEP scores

The most authoritative metrics are the relative scores of racial groups on the reading and math tests administered by the National Assessment of Educational Progress to the nation’s fourth-graders, eighth-graders, and (especially) high school seniors every two years since the early 1970s.

At the grade 12 level, for example, in math, only 7 percent of black students scored at or above the “proficient” level in 2015, the most recent year for which the 12th grade data are available, compared with 12 percent of Latinos, 32 percent of whites, and 47 percent of Asian-Americans. And in reading, only 17 percent of black students scored at or above “proficient” in 2015, compared with 25 percent of Latinos, 46 percent of whites, and 49 percent of Asian-Americans.

The only good news was that black and Latino students’ fourth-grade NAEP scores (mostly at age 9) improved relative to whites’ from the year 1992 (a 35-point white-black gap in math and a 32-point gap in reading) to 2017 (a 25-point gap in math and a 26-point gap in reading).

The white-Hispanic gaps in fourth grade scores shrunk modestly from 25 points in math and 27 points in reading in 1992 to 19 points in math and 23 points in reading in 2017.

“[A]the current rate,” wrote George W. Bohrnstedt, of the American Institutes for Research, “closing the gaps will take impossibly long. Even for Grade 4 mathematics, where progress has been greatest, it would take a century to close the gap!”

Among the more high-achieving students in each racial group, more than 5 percent of whites scored above 700 on both the math and the reading SAT tests in 2015; about 1 percent of African-Americans and Latinos did.

Part of the reason for these discouraging numbers is the lagging academic performance even of well-off black students at good schools. As Brookings scholars Richard Reeves and Dimitrios Halikias wrote in 2017: “[I]t is unlikely that the racial achievement gap can be explained away by class differences across race.”

“Income alone does not explain the racial scoring gap,” The Journal of Blacks in Higher Education reported in 2002. “Whites from families with incomes below $10,000 had a mean SAT test score that was 46 points higher than blacks whose families had incomes of between $80,000 and $100,000,” it noted. “Blacks from families with incomes of more than $100,000 had a mean SAT score that was 142 points below the mean score for whites from families at the same income level.”

All this helps explain a stunning revelation in internal Harvard data about admissions in the decade before 2012 that were unearthed by the current discrimination lawsuit: If Harvard had chosen its entering classes based on academics alone, only two-thirds of 1 percent of its students would have been African-American and fewer than 2.5 percent would have been Latino. Racial preferences account for most of the difference between those numbers and the black and Latino shares (14 percent each) of this year’s entering class.

The reasons for blacks’ academic problems and the role of racial preferences

Of course, black and Latino students’ academic problems are attributable not to any inherent character flaws but rather to inferior education – not only in school but, even more, at home and in after-school peer groups.

At home, due to cultural factors explored in books including Richard Sander’s and my 2012 book “Mismatch,” there is a lack of emphasis on studying and learning, along with too few books, too little reading, too much television, and too little effort to get the kids to school every day and on time. Black elementary school students in California, for example, are regularly truant nearly four times as often as their classmates.

These problems often stem from out-of-wedlock births to teenagers unprepared for motherhood and where no father is present. These, in turn, reflect the poisonous long-term cultural effects of slavery and past discrimination; complex, cross-cutting maladies such as welfare dependency, crime, and drug abuse; and bad individual choices. At school, too many kids are trapped in failing institutions with too few effective teachers; no option for their families to choose better schools; and powerful peer pressure to avoid studying.

Our society’s failure to improve the readiness of black 12th-graders for college over the past three decades – during which large racial admissions preferences have been the rule at selective colleges – makes it pretty clear that preferences are not helping K-12 black academic performance. Some evidence suggests that preferences may be hurting.

To be sure, racial admissions preferences give a boost to some strong black college students who have shown themselves to be more than able to compete with white and Asian-American classmates, even those who were better prepared coming out of high school. But many more black students may be harmed by racial admissions preferences both before and during college. Here are four reasons why:

First, racial admissions preferences blunt the incentives of black students to study and reinforce the pernicious stereotype that they cannot compete academically. In the words of the distinguished African-American linguist John McWhorter:

“[A]ffirmative action . . . deprives black students of a basic incentive to reach for that highest bar. … I can attest, for example, that in secondary school I quite deliberately refrained from working to my highest potential because I knew that I would be accepted to even top universities without doing so. Almost any black child knows from an early age that there is something called affirmative action, which means that black students are admitted to schools under lower standards than white; I was aware of this at least [from] the age of 10.”

Second, pressure to lower K-12 academic standards to avoid disparate rates of black failure fosters a culture of disregard for personal accountability and excuses for black failures. This is manifested by (among other things) the notion that studying is “acting white.”

Third, the focus of almost all academics, policymakers, civil rights groups, and others on perpetuating racial preferences and lowering academic standards for black students diverts attention, reformist energy, and resources from the far more urgent task of improving their educations at home and school during their first 18 years of life – “the most important civil rights battle of the twenty-first century,” in Roland Fryer’s words.

That would entail persuading young people to defer parenthood until they are ready; making long-acting contraceptives available to prevent unwanted births; fostering a culture of two-parent families; and motivating parents to stimulate their kids, read to them, and teach them to show up for school, do their homework, and avoid gangs and drugs.

A culture of good parenting must be promoted by social programs that include “experimenting [with] increasing cash transfers to disadvantaged parents with young children, improving access to quality preschool programs, pursuing paid leave policies to allow for more quality parent investment during the first years of life, teaching parents the skills they need to effectively raise their children, and so on,” in the words of Reeves and Halikias.

All that would cost a lot of money. But unlike the money that many cities, states, and courts have thrown at failing schools and that universities have spent promoting racial grievances, this money could do a lot of good.

Improving schools requires motivating academic and civic leaders, policymakers, and voters to extend the school year and the school day; attract and keep successful teachers by paying them much more; ease out ineffective teachers; energize the charter school movement; and overcome the opposition of teachers’ unions to doing any of these things. Without such reforms, experience has shown, even vast and unprecedented new spending on schools will have little impact on academic performance.

A push for more housing integration would also help. Scholarly work suggests that “housing integration – and, in particular, the lower poverty concentrations that blacks experience in integrated cities” — has substantially narrowed the test-score gap in such cities, according to “Moving Toward Integration,” a 2018 book by Richard Sander, Yana Kucheva, and Jonathan Zasloff. The reason such progress has not yet had much impact on the national test-score gap, notes Sander in an email interview, is that substantial integration is still fairly rare.

Fourth, both common sense and multiple peer-reviewed scholarly studies show that racial admissions preferences probably do even more damage to the academic achievement of African-Americans after they enter college than before. As Richard Sander and I detail in “Mismatch,” selective institutions use very large racial preferences to bring in thousands of underqualified black students without telling them that they are not close to being academically competitive with most of their classmates.

These supposed beneficiaries of racial preferences in many cases cannot keep up with the pace of instruction; get bad grades for the first time in their lives; flee from challenging to soft, easy courses that brand them as weak students in the eyes of classmates and employers; learn less than they would if they were at colleges for which they were well qualified; abandon aspirations to become scientists, physicians, engineers, or scholars; become discouraged and lose intellectual self-confidence; self-segregate with other academically overmatched black students; and, in some cases, bitterly complain that they are being discriminated against, when the problem is precisely the opposite.

The sad history of persistent racial academic gaps and preferences leading to mismatch suggests a bleak future. If present trends continue, most black students at almost every selective university in the country will continue to lag behind their Asian-American and white classmates academically for many more decades, if not longer.

Stuart Taylor Jr. is co-author, with Richard Sander, of “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It” (Basic Books 2012).

The post We Must Face Persistent Racial Gaps in Academic Performance appeared first on Stuart Taylor, Jr..

Almost all publicity about the case has focused on the powerful, if disputed, evidence that Harvard discriminates in admissions against Asian Americans—an historically oppressed racial minority—to avoid admitting a greatly disproportionate number from a group whose academic excellence far outpaces all others’.

The plaintiff, a body called Students for Fair Admissions (SFFA), wants to end Harvard’s alleged discrimination against Asian Americans, but its ultimate objective is far broader. It hopes to persuade the Supreme Court to order an end to the pervasive regime of large racial preferences (euphemistically called “affirmative action”) used by almost all selective schools to admit blacks, Latinos, and other minority groups ahead of Asian Americans and whites who are far stronger academically. The SFFA is headed by Edward Blum—the conservative activist who has organized some of the major legal challenges to affirmative action—and enthusiastically supported by dozens of Asian-American organizations (though also opposed by many others). Critics portray the lawsuit as a cynical ploy by whites like Blum to drive a wedge between other minorities and Asian Americans. But the latter would clearly be admitted in greater numbers, as would whites, if the suit wins. The Department of Justice issued a statement of interest in the case in August—and is itself concurrently investigating both Harvard and Yale on the same charge.

A ban, or at least a mandate to phase out preferences on a strict timetable, would be an overdue vindication of the nondiscrimination principle of the Constitution and our civil rights laws. It would also slow society’s drift toward racial preferences in every walk of life, which are a major driver of our ever more divisive identity politics. Such a ruling would also benefit the many good black and Hispanic students who are now being set up to struggle or fail—and be stigmatized as academic weaklings—by being recruited via preferences into schools for which they have not been well-prepared.

Yet court-ordered colorblind admissions could reduce the number of blacks at Harvard by more than half—from 14 percent to about 6 percent, according to the school’s court filings (these estimates are disputed by the plaintiff as unrealistically high). It could reduce Latinos at Harvard by about a third—from 14 percent to 9 percent. Colorblind admissions would bring even larger reductions in the black and Hispanic enrollments at the country’s less elite but still selective schools, where the racial gaps are often much larger than at Harvard. And while all of those students could still get into less selective or nonselective colleges, this would be a wrenching consequence.

Harvard and other top schools would find ways to mitigate the effects of a loss in the Supreme Court on black and Latino enrollments, such as increasing admissions preferences for disadvantaged students of all races and curtailing “legacy” preferences for mostly well-off, and mostly white, children of alumni and big donors. California banned racial preferences in state schools and programs in 1996, thanks to Proposition 209, and studies have shown that while fewer blacks and Latinos have been admitted to the most selective universities—Berkeley and UCLA—there were also good effects. Many of those who did not get into those campuses ended up having much greater academic success and better graduation rates at the less selective state schools. And any loss of diversity at Berkeley and UCLA was offset by diversity gains at these other schools. (Seven other states have since followed suit.)

Still, a large drop in black and Hispanic representation at top institutions—which would be relentlessly dissected by the media—would be a rude shock to many public-spirited Americans, and especially those blacks and Hispanics who have come to see preferential admissions as a permanent entitlement. Such a drop could aggravate the already dangerous bitterness of race relations and politics in this country. It could depress the morale of the many black students who already feel that the deck is stacked against them by white racism. This is the fundamental dilemma presented by the Harvard case and, ultimately, by the shockingly large—but rarely acknowledged—size and persistence of our nation’s racial gaps in academic performance at all levels.

These gaps shrank from the 1960s through the 1980s, but leveled off more than 20 years ago and show no sign of becoming smaller unless preschool and K-12 education change radically. The changes should include starting school earlier in life, immersing kids in learning for longer hours, training parents to help educate kids at home, paying effective teachers much more money, easing out ineffective teachers, and promoting good, well-funded charter and magnet schools and other alternatives to failing inner-city public schools. More fundamentally, studies suggest racial academic gaps are unlikely to disappear unless and until the structure of black families changes. And there is also much evidence that racial admissions preferences make it harder—not easier—to improve the weak academic performance of black and Latino students at all levels.

A Most Revealing Document

In 2012, Harvard’s Office of Institutional Research (OIR) made a table analyzing 10 years of the college’s admissions data. (For internal use only, it became public thanks to the SFFA lawsuit.) The table shows that if admission had been based solely on academic performance and test scores, only about a dozen—1 in 150, or two-thirds of 1 percent—of Harvard’s roughly 1,660 entering students per year would have been African American; about 40 (2.42 percent) would have been Latino; about 630 (38 percent) would have been white; and about 715 (43 percent) would have been Asian American. Other Harvard documents show that the average SAT scores of Asian and white students admitted from 2010 to 2015 were 218 points and 193 points higher, respectively, than those of admitted black students, on a 1600-point scale. The magnitude of the racial gaps in high school grades is roughly similar, especially if adjusted for school quality.

Almost nobody suggests that admissions should be based on academics alone. (Caltech is an exception. It says it uses no racial or legacy preferences in admissions, and its student body is more than 40 percent Asian.) Harvard and other selective colleges take account of extracurricular activities, personal qualities, and athletic talent. The children of alumni (legacies), big donors, faculty, and staff receive preferential treatment. And there are very large racial preferences for blacks, Latinos, and some smaller minority groups.

The OIR table found that after Harvard took account of nonacademic factors, including race, its typical entering class over those 10 years included not a dozen but about 173 African Americans (10.46 percent of the class); not 40 but about 157 Latinos (9.46 percent); not 630 but about 717 whites (43.21 percent); and not 715 but about 300 Asian-Americans (18.66 percent). (The numbers don’t add up to 100 percent because they don’t include foreign, “unknown,” and some other categories.) If Harvard had not used racial preferences but had considered all the other nonacademic factors, the OIR table found, the student body would have been about 2.36 percent black and 4.07 percent Latino.

Since 1978 and the splintered Bakke decision, a deeply divided Supreme Court has upheld admissions programs that take race into account as a balance-tipping “plus” in the interest of “diversity”—but only in that interest. But the Court’s four more conservative justices, who would have banned any consideration of race in university admissions, joined in Bakke with the pivotal Lewis Powell to reject a second justification advanced by the four liberal justices. This was that, apart from diversity, considering race is lawful if the purpose is “not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” Powell and the four more conservative justices also rejected racial “quotas” (a vague term that went undefined). In his solitary but controlling opinion, Powell wrote that the “interest of diversity” (also vague and undefined) is sufficiently “compelling” to justify limited consideration of race in admissions. He specifically praised Harvard’s policy of giving applicants of “disadvantaged” races a “plus” that might “tip the balance in [their] favor” to reward their “contribution to diversity.” Powell deemed this “contribution” to be a species of “educational pluralism” that would promote a “robust exchange of ideas.” In subsequent decisions, the Court would drop any pretense of seeking a robust exchange of ideas.

Twenty-five years later, in the 2003 Grutter case, five justices endorsed, in the words of Sandra Day O’Connor, “Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” But they also held that such programs had to be “narrowly tailored” and that “all race-conscious admissions programs [must] have a termination point.” O’Connor added that consideration of race in admissions was a temporary “deviation from the norm of equal treatment of all racial and ethnic groups,” adding “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary.”

Fifteen of those years have now passed with no sign that our most selective schools have any intention of ending—or even reducing—their use of racial preferences. Indeed, Harvard’s longtime admissions director, William Fitzsimmons, said in a deposition for the SFFA case in August that the school has no intention of ending its use of race as a factor in admission, that no evidence exists to support doing so at any point in time, and that he did not “know what form such evidence might take.” Other Harvard officials gave similar statements.

The Supreme Court’s conservatives could see this as verging on defiance of the Grutter precedent, the logic of which weighs more heavily in favor of phasing out preferences with each passing year. Today’s justices are also aware that the persistence of racial academic gaps means that the academic establishment will perpetuate racial admissions preferences indefinitely—unless prevented by law—in order to maintain or increase universities’ percentages of black and Hispanic enrollment. Civil rights groups, Democratic politicians, the news media, and much of corporate America support this agenda.

The Asian Penalty

The general public has long opposed racial admissions preferences by wide margins. Seventy percent of the respondents to a 2016 Gallup poll, including the majority of black respondents, said that college admissions should be based solely on merit. Only 26 percent said racial or ethnic background should also be considered. Those numbers have changed very little since Gallup first asked the questions in 2003. Similarly, in a survey released on September 17 by Boston’s WGBH News, respondents disagreed by 72 to 24 percent with the Supreme Court’s rulings that “colleges can use race as one factor in deciding which applicants to admit.” On the other hand, 83 percent said that “overcoming hardships such as poverty or health problems” should be considered, and 86 percent said it was at least somewhat important that colleges have racial diversity in their student bodies.

A statistical analysis of recent Harvard admissions records by Peter Arcidiacono, an expert witness for SFFA, found that being African American quadrupled (the school’s competing expert said tripled) and being Latino more than doubled an applicant’s chance of getting accepted.

A more general study of racial preferences at highly selective schools found that blacks average an admissions preference worth a staggering 450 (out of 1600) points on the combined math and verbal SAT tests over Asian Americans and a 310-point preference over whites; Latinos average a 270-point preference over Asian Americans; and whites average a 140-point preference over Asian Americans, a phenomenon otherwise known as the “Asian penalty.” While the SAT has long been criticized as culturally biased against blacks, the opposite is true. Blacks do worse in college on average than their SAT scores would predict.

In short, while Bakke and Grutter held that race and ethnicity could be a modest “plus factor” in an applicant’s file, the racial preferences used at Harvard and similar colleges are enormous.

Among the other allegations in the SFFA lawsuit against Harvard (which denies them all) are that it “provides no meaningful criteria to cabin or carefully guide” the weight it gives to race, leaving it to “individual admissions officers’ subjective preferences”; that the school has covertly defied Supreme Court precedents prohibiting quotas and “racial balancing”; and that it has made no serious effort to comply with the Grutter mandate that it engage in “serious, good faith consideration of workable race-neutral alternatives” to racial preferences.

The documents brought to light in the case show that the school admits more than twice as many nondisadvantaged as disadvantaged blacks, with the latter getting no preference over the former. This shows, the SFFA claims, that Harvard’s racial preferences are not primarily designed to help the black students most affected by our legacy of slavery and segregation. There is also ample public evidence that at selective schools generally, large admissions preferences catapult relatively well-off blacks and Latinos over less well-off and academically better qualified Asian Americans and whites. More than 25 percent of black students at selective schools are immigrants or children of immigrants, who on average are more socioeconomically advantaged than other blacks. Indeed, as Yale law professor emeritus Peter H. Schuck noted last year in One Nation Undecided, “most of the potential beneficiaries of [racial and ethnic preferences] are recent immigrants and their descendants,” who are -“competing with the descendants of black slaves whose families have been (and suffered) in America for centuries.”

The Costs of Balancing

The Supreme Court has so far upheld limited, temporary use of racial preferences on the ground that students learn valuable lessons from being exposed to diverse perspectives. The majority in the Grutter decision stressed the need for racial diversity in upholding the University of Michigan Law School’s racial preference plan. The companion Gratz decision struck down another University of Michigan racial preference plan, for undergraduate admissions, because it all too transparently used a quota-like point system to gauge exactly how much admissions officers should discriminate based on race: On a 150-point “selection index,” add 10 points for a mediocre 1010 SAT score; add 2 more for a perfect 1600; add 20 points for the difference between a 4.0 and a 3.0 high school GPA; add 20 points for being black, Hispanic, or Native American (or subtract 20 points for being white); and so forth.

The Court’s more recent decisions—in the Fisher v. University of Texas cases of 2013 and 2016 and the Schuette case in 2014, all three with majority opinions written by the just-retired Anthony Kennedy—have meandered inconsistently while continuing to uphold “narrowly tailored” preferences to advance “the benefits of diversity.” In the 2013 Fisher decision (Fisher I for simplicity of reference), Kennedy’s 7-1 majority opinion sent the case back to the appeals court with instructions to use a demanding standard seen by Court watchers as likely to lead to a major setback for racial preferences in the future. Then, in 2014, Schuette upheld 6-2 a Michigan constitutional amendment banning racial preferences in admissions at the state’s public universities.

The Fisher II decision was a surprise and a major, if still far from conclusive, victory for racial preferences. The same Kennedy, for the first time in his 25 years on the bench, upheld a racial-preference plan. He said courts must give universities “considerable deference,” if not a blank check, in designing admissions programs.

But Kennedy did not quite unsay his holdings for the Court three years earlier in Fisher I. He quoted earlier decisions: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.” And “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” And “an applicant’s race or ethnicity [must not be] the defining feature of his or her application.” And “outright racial balancing . . . is patently unconstitutional.” And “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Nor did he quite unsay O’Connor’s assertion in Grutter that “narrow tailoring . . . requires that a race-conscious admissions program not unduly harm members of any racial group” or her expectation that racial preferences “will no longer be necessary” after 25 more years—meaning after 2028.

Many scholars see racial preferences for blacks mainly as remedies for the continuing effects of slavery and past discrimination. No Supreme Court majority has ever approved this justification. The Court has, instead, used the diversity rationale to justify preferences not only for blacks, including recent immigrants, but also for Latinos and every other ethnic group—almost all of them immigrants and their descendants—whose members (on average) have trouble competing academically with Asians and whites.

Yet it is questionable whether students of any race benefit from the use of preferences to engineer diversity. This feeds stereotypes of racial inferiority; spurs self-segregation in classrooms, cafeterias, and dorms; and fosters hostility to intellectual diversity on racial and other issues as “microaggressions.”

In One Nation Undecided, Peter Schuck argued cogently that the benefits of preferentially engineered diversity on campuses “are insubstantial”: “[T]he programs’ designation of beneficiary groups is arbitrary and incoherent, even silly,” as are “affirmative action’s rigid pigeonholes.” Preferences “ratify the very stereotypes that the programs are intended to combat,” especially that of “academic inferiority,” and black students grow more and more committed to segregation. The very large white-black gap in SAT scores can create an academic “caste system” in which the preferred students take the easiest courses. He noted, moreover, that on campus “partisan and religious affiliation account for the largest viewpoint cleavages, certainly more than race does.”

The social costs of the racial-preference regime, on the other hand, are very high. As Roger Clegg of the Center for Equal Opportunity wrote in 2017:

It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive.

Richard Sander and I detailed one of Clegg’s 14 points in our 2012 book, Mismatch. Once preferentially admitted to highly selective colleges, a great many able, hardworking black students find themselves struggling to compete with some of the top Asian and white students in the country. Many rank near the bottoms of their classes, at great cost to their career aspirations and intellectual self-confidence, and actually learn less than they would at colleges where they would be as well-prepared as their classmates.

The mismatch problem is most severe at the selective schools that are less competitive than Harvard. This is because of what education specialists call the “cascade effect.” Harvard and the other super-elite schools absorb the best-qualified blacks and Latinos, some of whom are academic stars, while using relatively modest preferences to admit somewhat less strong students who would probably do better at less selective colleges. Those colleges, in turn, use larger racial preferences to bring in weaker black students, who tend to be even less competitive with their Asian-American and white classmates than blacks at the super-elites. And so on down the selectivity curve.

The Supreme Court clearly stated in Grutter that “a race-conscious admissions program [must] not unduly harm members of any racial group,” and the evidence mounts that racial preferences unduly harm members of every racial group.

A Pernicious Racial Stereotype

Under Harvard’s current admissions regime, according to an analysis of the data by SFFA expert witness Peter Arcidiacano, a GPA-test score combination that would give an Asian-American applicant only a 25 percent chance of admission would give an otherwise identical African-American a 95 percent chance, a Latino a 77 percent chance, and a white a 36 -percent chance. Asian Americans, though, are a far larger percentage of Harvard’s admitted students (22.7 percent this year, for example) than of the college-age U.S. population (about 6 percent). This still does not preclude a finding that Harvard discriminates against Asian Americans.

They are so much stronger academically than all other racial groups that the SFFA estimates if “Harvard admitted students based only on their academic index, Asian Americans would comprise over 50 percent of the admitted class.” (The school has increased Asian-American admissions substantially since the lawsuit was filed in 2014, which the plaintiff dismisses as a litigation strategy.) Such claims are always arguable, but Harvard has been forced by its own data to concede that despite Asian Americans’ primacy in academics and near-parity with whites on extracurricular activities, a smaller percentage of Asian-American applicants is admitted than of whites, blacks, or Latinos. Part of the reason is that Asian Americans score lower on “personal” ratings that are both highly subjective and—SFFA and the Department of Justice claim—racially biased.

Harvard says a key reason for its rejection of so many academically outstanding Asian Americans is that few qualify for the large preferences that are given to recruited athletes and alumni children. But the college has conceded that another reason is the relatively low scores its admissions officers assign, year after year after year, to Asian-American applicants for “personal” traits including “human qualities,” being an “attractive person to be with,” having a “positive personality,” and general “likability . . . helpfulness, courage, kindness.” The personal ratings are made by admissions officers who meet face to face with only a handful of applicants annually. They base the scores on a review of the essays, letters of recommendation, and the like in applicants’ files.

SFFA and the Justice Department suggest that these personal ratings reflect either pernicious racial stereotyping or deliberate racial discrimination. Harvard’s court papers deny both and vaguely suggest that the lower average Asian-American personal scores are based on statistical evidence that Asian-American applicants are weaker than whites in “factors that inform the personal rating.” But when asked in his deposition whether “Asian Americans have fewer attractive personal qualifies than white students,” Fitzsimmons, the Harvard admissions director, said: “That wouldn’t be my impression.”

This statement is hard to square with Harvard’s court papers and the report of David Card, the school’s own expert witness. The SFFA lawsuit and the Justice Department’s statement of interest both point to the substantial evidence that Harvard admissions staff—which acknowledges overtly considering applicants’ race at various stages of the admissions process—does so in scoring personal traits as well. The college denies this, but the evidence makes the denial ring hollow. SFFA and Justice stress three secret OIR reports done for Harvard’s leadership in 2012 and 2013 in the wake of the first publicized, heavily documented charges that Harvard discriminates against Asian Americans. These reports, made public this summer through the lawsuit, reach no definitive conclusions on questions including “Is there bias against Asian Americans in college admissions?” But they indicate that Asian-American admissions to Harvard during the 10-year period studied would have more than doubled, to 43.04 percent of all admitted students, if only academics were considered; found that Asian-American ethnicity was negatively correlated with both the personal rating and admission; and suggested that more analysis was necessary to “further address the issue of bias.”

Harvard’s leaders ignored these disturbing reports. They could have sought further analysis of whether the personal rating was racially biased against Asian Americans and endeavored to ensure that it would not be biased in the future. Instead, they “left in place a personal rating that harms Asian American applicants’ chances for admission, weighs heavily in Harvard’s admissions process, and may be infused with a use of race that Harvard has made no effort to justify,” as the Justice Department asserted. All this, DoJ added, “despite [Harvard’s] legal obligation to ensure that its admissions process does not discriminate on the basis of race.”

Harvard dismisses the OIR reports as “preliminary and incomplete”—without bothering to explain why it left them preliminary and incomplete. Even the Harvard Crimson’s editorial board, which is explicitly for racial preferences, noted on September 10, “In failing to further investigate whether it discriminates against Asian Americans in its application process, Harvard ditched educational values and its own motto—‘veritas.’ ”

The school’s defense stresses that there is little or no direct evidence of Harvard officials’ intentionally scheming to hold down Asian-American admissions. But the statistical evidence is powerful. So is the fact that Harvard did nothing to explore or remedy the troubling facts in the 2012 and 2013 OIR reports.

The Conservative Court Weighs In

If the Harvard case does reach the Supreme Court, the stage will be set for a very big decision. The Court could, of course, rule for Harvard across the board, which would entrench racial admissions preferences permanently in higher education in most of the country. That outcome seems improbable if the Court still has five conservative-leaning justices when a decision comes down—as the Court has now for the first time since the 1930s with the confirmation of Brett Kavanaugh. On the other hand, in this era of party-line voting, a Harvard win would be highly probable if the number of conservative justices went down to four.

Another possibility is a relatively narrow ruling that Harvard has unconstitutionally discriminated against Asian-American applicants. The Court could in effect require Harvard to change its admissions policies, especially the “personal” rating, in a way designed to admit more Asian Americans and fewer whites, while assuming the continued validity of Harvard’s very large preferences for blacks, Hispanics, and other “underrepresented” minorities. That, too, seems unlikely as long as there are five conservative justices.

Chief Justice of the United States John Roberts wrote in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Clarence Thomas in his dissent in Fisher II said he would hold that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Justice Samuel Alito has found unconstitutional every racial preference plan to come before him, and in his dissent in Fisher II—in passages that could easily be turned against Harvard today—he accused the University of Texas of both discriminating against Asian-American applicants and “turn[ing] affirmative action on its head” by channeling racial preferences to the children of affluent black and Hispanic professionals. Alito has also been highly skeptical of arguments that racial preferences are needed to bring “the educational benefits of diversity.” The fourth conservative, Neil Gorsuch, has no track record on the issue, but few conservatives support racial preferences. And Anthony Kennedy’s replacement, Brett Kavanaugh, said in a newspaper interview 19 years ago that it was “inevitable” that the Court “within the next 10 or 20 years” would rule “that we are all one race in the eyes of the government.”

If the Court wants to nibble around the edges of the racial-preference regime without striking a major blow, it could rule against Harvard on just one or two allegations, such as the claim that “the record contains substantial evidence that Harvard is engaging in unlawful racial balancing in formulating each year’s admitted class.” Or the claim that Harvard has “never engaged” in the “serious, good-faith consideration of workable race-neutral alternatives” required by the Grutter precedent.

But such a ruling could be easily circumvented and would have very limited impact on universities’ ability to perpetuate racial preferences. At the very least, the Court should hold that “narrow tailoring” requires universities to make public the data that show the degree of their use of racial preferences and the average academic performance in college of the preferred groups. This would enable preferred students from those groups to assess how steep a hill they would have to climb to compete with far better-prepared classmates. Transparency would also be useful to policymakers and citizens. Schools should be pressured to disclose the size of their legacy and other preferences as well.

A conservative majority might be tempted to declare an immediate, categorical ban on all racial admissions preferences. The danger is that, apart from the vast eruption of protest that would ensue, schools would be unprepared to mitigate the effects of the change. Better might be for the justices to give Harvard and other universities a few years to work out how best to come into compliance and implement nondiscriminatory ways to promote diversity.

The Court could, for example, order Harvard—and, by extension, other colleges and graduate schools—to phase out all use of racial admissions preferences by 2028—
50 years after Bakke. That timetable would be in line with the views expressed or implied by all nine justices in the 2003 Grutter decision. And if, as seems likely, the Court does not issue a final decision in the Harvard case until about 2022 or 2023 (if at all), that would give Harvard time to phase out consideration of race and put pressure on other schools to prepare to do the same.

In this regard, and in light of the valid complaint by champions of racial preferences that legacy preferences mainly benefit wealthy whites, a dissenting point made by Clarence Thomas in Grutter might prove prophetic: “Were this court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular.” Why? Because such a ban would increase the pressure to reduce white admissions further than has already been done (Harvard’s student body is less than half white) to make room for more non-whites.

Ending racial preferences would have costs as well as benefits. But one undoubted benefit would be removing the incentive for rampant lying by virtually everyone involved in the racial-preference regime. In late September, Yale president Peter Salovey wrote a letter to the university at large insisting that “Yale does not discriminate in admissions against Asian Americans or any other racial or ethnic group.” Harvard president Lawrence S. Bacow followed suit on October 10 in a letter to the college’s alumni: “Let me be unequivocal: The College’s admissions process does not discriminate against anybody.” The evidence suggests these are bald-faced lies. Putting aside for the moment the powerful evidence of discrimination against Asian Americans, don’t white kids count? Do not those who are rejected based on race to make room for much less qualified applicants experience discrimination? Or has the word discrimination been redefined as something whites can never experience? One might think so from the false denials of any discrimination at all by the many universities that routinely discriminate against white and Asian-American applicants and call it “affirmative action.”

Then there is the deception of the thousands of black and Hispanic students (and their parents) who are told that they are well-qualified to compete academically against classmates who have far stronger academic records. This despite the universities’ knowledge that most are destined to be near the bottoms of their classes and could achieve much more elsewhere. The lies will continue as long as racial preferences do.

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Unless the next two Supreme Court appointees are strong opponents of racial preferences — a most unlikely prospect — the Court’s role since the 1978 Regents of the University of California v. Bakke decision as a modest restraint on use of such preferences is at an end.

To be sure, Justice Anthony Kennedy’s opinion for the four-three majority, upholding a racial-preference plan at the University of Texas, did not say in so many words that the Justices will bless virtually any racial preference plan that comes before them. And he did include perfunctory lines about the need for “strict scrutiny” of racial preferences.

But barring a surprise Trump win in the presidential election (which I would find even more distressing than the Court’s decision), few if any Court-watchers expect any significant restraint on racial preferences to come from the Justices after this decision, Fisher v. University of Texas.

“Considerable deference is owed to a university,” Kennedy wrote, “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

He minimized as “a factor of a factor of a factor” the complex but clearly large role of race. Justice Samuel Alito, in a fifty-one-page dissent that he summarized from the bench, said more candidly that the decision amounted to “blind deference” to the “[c]onsideration of race [that] pervades every aspect of UT’s admissions process.”

Henceforth, as Alito asserted, “Courts will be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” From the bench, Alito added: “This is affirmative action gone berserk.”

History has proved that — despite lopsided, longstanding public disapproval of racial preferences — the universities and powerful special interest groups are committed to continuing them without end. And almost all legislative bodies go along, in part for fear of being trashed in the media as racists if they object.

(To be sure, California and a handful of other states have prohibited state-sponsored racial preferences by ballot initiatives — which universities have largely circumvented by using various proxies for race in their admissions process.)

Kennedy — who had never before voted to uphold a racial preference — abandoned or gutted a list of rules limiting such preferences (noted below) that previous Supreme Court precedents had announced, going back to Bakke.

Racial integration of our universities is, of course, a good thing. And universities have achieved considerable racial diversity through means such as the Texas “Top Ten Percent Plan.” But engineering diversity through large, overt racial preferences aggravates racial stereotypes and resentments and often leads to social isolation, academic struggle, and understandable bitterness among members of the preferred groups.

The racial-preference fingers on the scales of the admissions processes at Texas and across the country are far heavier than one might imagine from media reports.

The best available statistics from the University of Texas suggest that the black students admitted under the overt racial preference plan (as distinguished from the facially race-neutral Top Ten Percent plan) have, on average, had SAT scores as much 450 points lower than Asian-American admittees, and 390 points below whites, out of a total possible score of 2400.

And according to a 2009 book by Thomas Espenshade and Alexandra Walton Radford (both supporters of racial preferences), who compiled academic data from a sample of highly selective, mostly private colleges, black applicants received “an admissions bonus . . . equivalent to 310 SAT points” relative to whites and 450 points relative to Asians on a 1600 point scale.

For example, a “black candidate with an SAT score of 1250 could be expected to have the same chance of being admitted as a white student whose SAT score is 1560, all other things equal.” There are similar racial gaps in admitted applicants’ high school grades.

These differences in academic preparation lead directly to vast gaps in academic achievement among racial groups at selective universities including Texas, and to rude and depressing shocks for black and Hispanic students who find themselves struggling academically after being assured that they will do well. Richard Sander and I demonstrated this in a 2012 book, Mismatch.

For example, numerous studies by respected scholars have shown that disproportionate percentages of preferentially admitted black freshmen who aspire to major in science and other tough subjects are forced by bad grades to move to softer majors – and that they would be more likely to achieve their ambitions had they gone to less elite schools for which they were better qualified.

Another study shows that students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.

The Court’s decision is dispiriting for those of us who do not wish to see desirable positions in our society increasingly allocated by race, into the indefinite future, and who agree with the Court’s repeated assertion — most recently by Kennedy himself, just three years ago, in an earlier ruling in the Fisher case — that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.”

The Fisher decision is of course welcome to the Obama administration and its allies, who have largely abandoned previous assurances that racial preferences would be a mere temporary deviation from merit-based admissions.

Indeed, then-Attorney General Eric Holder announced in 2012 that “I can’t actually imagine a time in which the need for diversity” — and, he implied, for racial preferences — “will ever cease.”

Among the previously articulated Supreme Court restraints on racial admissions preferences that Kennedy’s decision implicitly cast aside are the rule that “outright racial balancing . . . is patently unconstitutional.” In Fisher, Kennedy upheld a Texas plan that was clearly designed to bring racial percentages within the student body more into line with the state’s demographics. That’s what outright racial balancing is.

The decision also cast aside, without quite saying so, previous holdings that “a race-conscious admissions program [may] not unduly harm members of any racial group.”

Even if the Texas preference plan does not “unduly” harm whites (a debatable proposition), it discriminates flagrantly against Asian-Americans, a fact ignored by the majority and demonstrated by Alito. It also harms a great many of the African-American and Hispanic-American supposed beneficiaries, as discussed above.

Kennedy went through the motions of upholding yet another Supreme Court rule which he in fact gutted: that universities have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice” to provide adequate diversity. The university demonstrated no such thing, as Alito devastatingly detailed.

And, of course, the new decision makes a dead letter of the Court’s caveat in its 2003 Grutter v. Bollinger decision that equal protection prohibits “enshrining a permanent justification for racial preferences.”

Again, this is not to say that Kennedy’s opinion — for liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor — overtly cast aside the Court’s previous holdings. (Chief Justice John Roberts and Justice Clarence Thomas joined the dissent. Justice Elena Kagan was recused.)

Rather, Kennedy interpreted them into insignificance by accepting every argument made by the university, no matter how implausible or inconsistent with the same university’s previous arguments in the same case.

Not to mention Alito’s point that “UT’s crude [racial] classification system is ill suited for the more integrated country that we are rapidly becoming.”

Or his additional point that UT’s emphasis on preferences for socioeconomically well-off black and Hispanic students — as distinguished from the mainly disadvantaged black and Hispanic students admitted through the Top Ten Percent Plan — flouts the “purpose of helping the disadvantaged” that was originally the heart of affirmative action.

It goes without saying that enduring racial and socioeconomic inequality causes deep wounds in our social fabric, and that educational gaps are at the heart of these dire problems. But the evidence shows that large racial preferences make things worse, not better, while neglecting our most promising working-class and low-income students and papering over the real problem.

That problem is the large racial gaps in early academic achievement symbolized by the undisputed fact that the average black twelfth grader has acquired no more academic learning than the average white eighth grader.

The only real solution is to improve the education received by these children from birth through high school. Every bit of energy that is spent on sustaining a failed system of racial admissions preferences would be far better invested in teaching kids enough to make them academically competitive when they arrive at college.

But the Court’s decision appears likely to facilitate the continued use of racial admissions preferences as an excuse for continued neglect of the crippling effects of bad K-12 education on many black and Hispanic children.

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By making clear that racial affirmative-action preferences in higher-education admissions are likely to have the Supreme Court’s blessing for many decades to come, the Court might—just might—have set the stage for a more candid and constructive public discussion about how to make preferences work more effectively for the intended beneficiaries.

The June 23 decision should end the siege mentality among defenders of racial preferences—and that, in turn, should lead to much-needed transparency and honesty about the costs as well as the benefits of the very large preferences that most selective schools have long used.

Barring an improbable change in the Court’s membership, Justice Anthony Kennedy’s opinion for the 4-3 majority in Fisher v. University of Texas gives universities very broad latitude to design race-conscious admissions programs that they believe will foster more inclusive, multiethnic communities and educate students to function effectively in an ever more diverse world.

The decision should also move defenders of racial affirmative action to confront the hard truth that many African-American, Hispanic-American, and other minority students are handicapped by inadequate K-12 educations and find themselves struggling academically at selective schools.

Students admitted with modest racial preferences often thrive in college. But a wealth of social science evidence shows that those who receive unduly large preferences often lag far behind classmates with much stronger high school grades and test scores. Many of these students lose intellectual self-confidence, abandon career aspirations, and sink into social isolation.

Well over 20 empirical studies over the past 12 years by serious scholars have confirmed the common-sense perception that most students learn less if they are thrust into environments in which most of their peers are much better prepared to learn difficult material. The research has included large, experimental studies conducted by some of the world’s top social scientists in such diverse settings as the Air Force Academy in Colorado and elementary education in Kenya.

These “mismatch effects,” as they are called, have been particularly well documented in the sciences and in law school. They help explain why African-Americans attending college are only one-seventh as likely as whites to attain a science Ph.D., why many are forced to abandon their dreams of becoming physicians or engineers, and why there are huge racial gaps in bar-exam passage rates.

But mismatch effects are neither preordained nor universal. Supportive academic environments can offset or eliminate them. When racial gaps between entering students are relatively modest, students of color can raise their games and gain ground in college on somewhat better-prepared white and Asian classmates.

Universities could increase the benefits of affirmative action and minimize the costs by the simple expedient of truth in marketing—that is, by disclosing closely guarded data showing the size, and the apparent effects on academic performance, of the preferences they use to reach the racial targets they set for themselves.

How large a preference is too large? There is no simple formula. But lifting the veil of secrecy that universities now use to conceal data about their preference programs would foster better understanding of the trade-offs and more informed discourse about best practices.

In the past, academically underprepared minority students have often been misled by the universities that recruit them about their prospects for academic success. Transparency would help these students assess the strength of the competition that they would be up against and which schools might work best for them.

The same is true for alumni children and recruited athletes, many of whom receive admissions preferences that are (with the exceptions of athletic stars and kids of very large donors) much smaller.

We urged the Supreme Court in an amicus brief in Fisher to require universities to be transparent about the size and workings of their admissions preferences and their academic effects. The Court, we now know, is not going to do that. But for the reasons given above, enlightened educators should embrace transparency voluntarily.

Why have they never done so? A major reason has been the fear that has grown over four decades that honesty about the size and scale of preferences, or about the reality of mismatch effects, would only provide ammunition for a broad Supreme Court attack on all affirmative-action programs.

This fear has led otherwise thoughtful people to disregard or deny strong evidence that mismatch is a serious problem, and to obstruct access to the data that could shed light on the actual effects of admissions preferences on intended beneficiaries.

But with the Supreme Court’s move in Fisher to broad tolerance for policies promoting racial diversity, this fear of a judicial attack has now been largely laid to rest.

University leaders, scholars, civil rights groups, and others should work together to make sure that when preference policies are used, they are used openly; that they are designed to benefit promising disadvantaged students of all races; and that academically vulnerable minority students are no longer misled about their prospects by colleges seeking to raise their diversity numbers.

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But what he was obviously trying to say made an important point that had nothing to do with racism — a charge hurled at Scalia by people including Harry Reid, the Senate Democratic leader, who once again wallowed in shameless demagoguery.

calia began by saying that “there are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower track school, where they [would] do well.”

This was seen by many as a racist suggestion that blacks are inherently unfit for top schools. And phrases like “less advanced school” and “slower track school” sounded derogatory.

But Scalia clearly meant to say that perhaps it does not benefit blacks to use large racial preferences to get them into a highly selective university where, all the evidence shows, such preferentially admitted students don’t do well.

He continued for a few more awkwardly worded sentences to sketch the consequential theories advanced in works including a 2012 book by Richard Sander and me, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It,” and in amicus briefs by us and others.

Scalia’s bad choice of words gave critics such as Reid a pretext to dismiss mismatch theory without confronting the growing body of evidence that it points to very serious problems caused by large admissions preferences.

But the gist of Scalia’s point is consistent with common sense. Why is anyone surprised at the idea (confirmed by data) that black students have a hard time thriving academically when brought by very large racial preferences into competition with classmates most of whom are far, far better prepared? (Small preferences, we think, create no such problem.)

Scalia’s point is also supported by a large and growing body of social science studies by more than 20 respected scholars about the effects of large racial preferences.

Mismatch theory does not deny that many black students are academic stars. President Obama, for one. It points to the problems of all students who are admitted via large preferences, as are some very rich donors’ children, some athletes, many Hispanic students, and the vast majority of black students.

(The “legacy preferences” at many schools for alumni children, which I also oppose, appear to be much smaller, with a much smaller mismatch effect, the scant available data suggest.)

The research also suggests that black students do fine when competing against Asians and whites who arrive at college with similar academic credentials.

While the details are complicated, mismatch theory and the research underlying it are easy to understand in a general way.

Below are five critical facts (detailed in “Mismatch”) that no open-minded expert doubts, although the universities, other supporters of racial preferences, and most of the news media conceal them insofar as possible.

(1) Because of very large racial preferences in admissions, the racial gaps among entering students in test scores, high school grades, and other indicia of academic preparation are enormous at virtually all selective colleges — on the order of 200-450 SAT points between the mean black and Asian, and 150-400 points between the mean black and white, students at the same college. There are also commensurate racial gaps at almost all selective colleges in entering students’ high school grades if adjusted for high school quality.

(The gaps are much smaller among “holistically” admitted students at state colleges in California, Michigan, and other states where racial preferences have been outlawed.)

(2) As a result, there are also large racial gaps in academic performance in college and graduate school. More than half of black students end up in the bottom tenth of their classes in law schools and in the bottom quarter at most selective colleges, no matter how hard they work.

(3) Five undisputed, peer-reviewed studies show that these racial gaps also force highly disproportionate numbers of the many black students who are interested in becoming scientists to give up that ambition. The reason is that they cannot do well in science and other STEM courses and thus move into soft, easily graded courses.

(4) All this creates or aggravates racial isolation and self-segregation, in part because studies show that unsuccessful students take different courses than successful students and that most students socialize mainly with their academic peers.

(5) Most of same black students who suffer academically at schools to which they were admitted via large preferences would do far better at somewhat less competitive schools where their academic preparation would make them competitive with classmates. But because of what is called the cascade effect, as long as there are large preferences there will be large racial gaps in academic preparation and performance at virtually all selective schools.

My co-author and I, and others, draw from the limited available evidence two hugely important but debatable inferences. The first, of which I am very convinced, is that mismatch leads to a loss of intellectual self-confidence among many black students that may be long lasting.

The second inference is that many recipients of large racial preferences would be better off in the long run — with more learning, better careers, and perhaps happier lives — if they went to less prestigious but still excellent schools where they could do well academically.

Prestige has obvious advantages. The question is whether they outweigh the costs of being near the bottom of the class.

Serious mismatch scholars say that more data, which universities assiduously conceal, are needed to shed light on these two issues, and on related ones such as whether the current campus unrest is related to the academic problems that most black students suffer because of mismatch.

On the other hand, virtually all of the highly credentialed scholars who attack mismatch theory gloss over the five numbered facts above — which they know to be true — and launch ill-founded and often intemperate attacks on the debatable inferences as though they discredit all of mismatch theory.

At the same time, these anti-mismatch zealots furiously oppose making available to scholars or the public the data that could shed light on the long-run effects of large racial preferences on the students about whom they purport to care. I think I know why.

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In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.”

You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

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The reasons are of course multifaceted. But one deserves far more attention than it has gotten: Many or most of the African-American student protesters really are victims — but not of old-fashioned racism.

Most are, rather, victims of the very large admissions preferences that set up racial-minority students for academic struggle at the selective universities that have cynically misled them into thinking they are well qualified to compete with classmates who are, in fact, far stronger academically.

The reality is that most good black and Hispanic students, who would be academically competitive at many selective schools, are not competitive at the more selective schools that they attend.

That’s why it takes very large racial preferences to get them admitted. An inevitable result is that many black and (to a lesser extent) Hispanic students cannot keep up with better-prepared classmates and rank low in their classes no matter how hard they work.

Studies show that this academic “mismatch effect” forces them to drop science and other challenging courses; to move into soft, easily graded, courses disproportionately populated by other preferentially admitted students; and to abandon career hopes such as engineering and pre-med. Many lose intellectual self-confidence and become unhappy even if they avoid flunking out.

This depresses black performance at virtually all selective schools because of what experts call the cascade effect. Here’s how it works, as Richard Sander and I demonstrated in a 2012 book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It:

Only 1 to 2 percent of black college applicants emerge from high school well-qualified academically for (say) the top Ivy League colleges. Therefore, those schools can meet their racial admissions targets only by using large preferences. They bring in black students who are well qualified for moderately elite schools like (say) the University of North Carolina, but not for the Ivies that recruit them. This leaves schools like UNC able to meet their own racial targets only by giving large preferences to black students who are well qualified for less selective schools like (say) the University of Missouri but not for UNC. And so on down the selectivity scale.

As a result, experts agree, most black students at even moderately selective schools — with high school preparation and test scores far below those of their classmates — rank well below the middle of their college and grad school classes, with between 25% and 50% ranking in the bottom tenth. That’s a very bad place to be at any school.

This, in turn, increases these students’ isolation and self-segregation from the higher-achieving Asians and whites who flourish in more challenging courses. At least one careful study shows that students are more likely to become friends with peers who are similar in academic accomplishment.

Put yourself in the position of manyHispanic and especially black students (recipients of by far the largest racial preferences) at selective schools, who may work heroically during the first semester only to be lost in many classroom discussions and dismayed by their grades.

As they start to see the gulf between their own performance and that of most of their fellow students, dismay can become despair. They soon realize that no matter how hard they work, they will struggle academically.

It is critical to understand that these are not bad students. They did well in high school and could excel at somewhat less selective universities where they would arrive roughly as well prepared as their classmates.

But due to racial preferences, they find themselves for the first time in their lives competing against classmates who have a huge head start in terms of previous education, academic ability, or both.

Researchers have shown that racial preference recipients develop negative perceptions of their own academic competence, which in turn harms their performance and even their mental health, through “stereotype threat” and other problems. They may come to see themselves as failures in the eyes of their families, their friends, and themselves.

Such mismatched minority students are understandably baffled and often bitter about why this is happening to them. With most other minority students having similar problems, their personal academic struggles take on a collective, racial cast.

Consider the case of a student whom I will call Joe, as told in Mismatch. He breezed through high school in Syracuse, New York, in the top 20 percent of his class. He had been class president, a successful athlete, and sang in gospel choir. He was easily admitted to Colgate, a moderately elite liberal arts college in rural New York; no one pointed out to Joe that his SAT scores were far below the class median.

Joe immediately found himself over his head academically, facing far more rigorous coursework than ever before. “Nobody told me what would be expected of me beforehand,” Joe later recalled. “I really didn’t know what I was getting into. And it all made me feel as if I wasn’t smart enough.”

But just as surprising and upsetting was the social environment in which Joe found himself. “I was immediately stereotyped and put into a box because I was African American,” he recalled. “And that made it harder to perform. People often made little derogatory comments.…There was a general feeling that all blacks on campus were there either because they were athletes or they came through a minority recruitment program.… That was just assumed right away.”

It was also, unfortunately, quite true. That’s why racial preferences are an extremely powerful generator of racial stereotypes about intellectual abilities. Joe was forced by bad grades to drop out after his freshman year, though he eventually returned to Colgate and obtained his bachelor’s degree.

Not many mismatched students complain — even if they figure out — that the root of their problems is that they are not well-qualified to compete with their classmates. The universities, the media, and others do their best to conceal and deny this connection. And it is human nature to seek less humiliating, more sinister explanations.

The grievance-prone college culture offers ready targets for these frustrated students to blame for their plight: wildly exaggerated and sometimes fabricated instances of racism, trivial perceived “microaggressions,” and the very real racial isolation that is largely due to racially preferential admissions — all leading to a supposedly hostile learning environment.

Another common reaction is to withdraw into racial enclaves within the campus. Many universities encourage this by creating black dormitories and even by assigning entering students to them.

Racial, intellectual, economic, social, religious, and political diversity can greatly enrich the educational experience — but not when engineered through large preferences that do more harm than good to their supposed beneficiaries, not to mention to the stronger students who are passed over to make room for racial-preference recipients.

All this goes a long way toward explaining the over-the-top demands now roiling our campuses for still more racial admissions preferences; more preferentially hired, underqualified professors; more grievance-focused courses and university bureaucrats; more university-sponsored racial enclaves; and more apologies for “white privilege.”

The university leaders who cravenly coddle the racial grievance lobby, such as Yale President Peter Salovey and Princeton President Christopher Eisgruber, are only aggravating academic mismatch, racial isolation, and unhappiness among minority students — and degrading their own universities.

Pessimistic observers of such meltdowns conclude that our most prestigious universities are committing suicide. Where are the leaders who will set things straight?

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I detailed here the reasons for this hope, and I join other racial-preference critics in seeing the decision as a narrow if unsatisfying win on principle.

But I also have a fear, explained below, that Fisher could be a prelude to entrenching racial preferences in university admissions for many more decades, especially if the next few Supreme Court appointments are made by Democratic presidents.

My fear has little to do with the details of Justice Anthony Kennedy’s opinion for himself and six other justices. They sent the case back to the 5th Circuit Court of Appeals with orders to require the university to prove that “available, race-neutral alternatives do not suffice” to prove enough diversity.

Rather, my fear is grounded on the extraordinary difficulty and expense of bringing a legal challenge to a university’s racial-preference regime, combined with the political odds against the next few appointees to the Court being opponents of racial preferences.

By spurring both sides in such cases to dig up detailed evidence on the operation and effects of preferences — which I applaud in principle —Fisher will make suing even more expensive.

Indeed, the obstacles are so formidable that Justice Kennedy had to know he was passing up what may be his only chance to force universities to reduce their heavy reliance on racial preferences.

Kennedy could have done that, without directly overruling any of the Court’s precedents, by spelling out detailed rules for evaluating racial preferences, including more attention to socioeconomic diversity and public disclosure of the weight given to preferences and their effects on academic performance.

He chose instead to hold that the university had not yet proved enough to justify its preferences while shedding no light on what more it must prove.

Lawsuits by disappointed applicants like Fisher have been few and far between. Indeed, the Supreme Court has issued only four decisions in its history on admissions preferences — one in 1978, two in 2003, and nowFisher.

All of these decisions purported to require “strict scrutiny.” But in practice, none has made it very hard for universities to give as much weight to race as they wish.

Another challenge by a rejected white student, DeFunis v. Odegaard, was dismissed in 1974 as moot. And the risk of dismissal on account of mootness, or lack of standing, will face every potential future plaintiff.

Consider the other obstacles:

Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives. Suing has opened white plaintiffs such as Abby Fisher to hostile publicity and even vilification. Fisher was also opposed in the Supreme Court by a very wide array of major establishment institutions.It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences. While aggregate data suggest that many or most universities give black applicants a boost over whites equivalent to a full point of GPA, or 300 SAT points, and a larger boost over Asians, almost all universities cloak in secrecy how much weight they give to race.Another deterrent to suing is the endless delay that is routine in major litigation. Abigail Fisher had long since graduated from Louisiana State University by the time the Supreme Court got around to deciding her case — by sending it back to the lower courts for more litigation!Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants.While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

Although the justices have agreed to hear this fall what is widely styled an affirmative action case from Michigan, the issue there is not whether racial preferences in state university admissions violate the U.S. Constitution’s equal protection clause. It is whether, as the pro-preference plaintiffs claim, Michigan’s voters violated equal protection when they required equal treatment of all races by banning preferences in 2006.

That theory may sound Orwellian to you, as to me. But it was good enough for the 6th Circuit Court of Appeals to strike down the voters’ ban on racial preferences by an 8-7 party-line vote.

The justices seem very likely to reverse that decision — I hope by a lopsided vote. And more of the states that allow ballot initiatives may join Michigan, California, Washington, Arizona, and Nebraska in adopting such bans.

But how many more lawsuits directly challenging university racial-preference plans will reach the Court?

Possibly none, until after the 76-year-old Kennedy has left the bench.

Remember Justice Sandra Day O’Connor’s 2003 statement for the majority in Grutter v. Bollinger, that “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary”?

That would be good. But I’m not betting on it.

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That should bring attention to the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity.

The seeds of a potentially rich debate in future lawsuits and around the country about how racial preferences operate in practice and their effects on students can be found in Justice Anthony Kennedy’s spare opinion for himself and six other justices.

They overturned the decisions of two lower courts for having upheld the university’s heavy reliance on race in pursuit of diversity “without closely examining how the process works in practice.”

The Constitution, the justices held, requires that universities bear “the burden of demonstrating, before turning to racial classifications, that available, race-neutral alternatives do not suffice.”

The most obvious race-neutral alternative, although Kennedy’s vague opinion didn’t discuss it, is to try harder to bring in working-class and poor kids of all races — a form of diversity to which most universities have given short shrift — while reducing the weight given to race.

Under the current racial-preference regime, Texas and other universities routinely admit many wealthy and middle class (and a few poor) black and Hispanic kids while rejecting Asians and whites who are (in many cases) both less affluent and better-prepared.

More broadly, the logic of Kennedy’s opinion implies that courts should focus less on abstract, all-or-nothing constitutional and moral arguments about whether race can be considered at all and more on whether racial preferences are working as advertised.

If such evidence becomes the focus, courts and policymakers will have to confront an outpouring of studies showing that large racial preferences set up many black and Hispanic intended beneficiaries for academic frustration.

These students are brought without warning into highly competitive settings where they are likely to struggle academically, become demoralized, abandon any aspirations to major in the rigorous courses necessary to become doctors, scientists or other professionals, and barely squeak by or even fail.

These students are victims of what we call academic “mismatch.” Many or most would do much better academically, and perhaps in their careers, if they attended somewhat less selective but still very good schools for which they are well prepared.

An outpouring of studies show that many students admitted via large preferences, after being assured that they are well-qualified, end up abandoning science and other tough courses in highly disproportionate numbers; getting low grades, with half of black students ranking in the bottom 20 percent of their classes in college and the bottom 10% in law school; and that more than half of black law students (the best data suggest) never become lawyers because they cannot pass the bar exam.

Careful surveys and other evidence show that all this takes a heavy toll on the self-confidence of many of these students. Large racial preferences also stigmatize even the most capable black and Hispanic students by fostering the stereotype that all of them are academically sub-par “affirmative action admits.”

We hope that evidence like this will be given due attention in future litigation over racial preferences, and will force universities to reduce the size and scope of racial preferences while seeking more socioeconomic diversity and making their highly secretive racial-preference regimes more transparent.

Stuart Taylor, Jr., a Washington journalist and Brookings nonresident fellow, andRichard Sander, a UCLA Law Professor, are coauthors of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

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