‘Affirmative action is not fair – we cannot cure the racism of the past with new racism’

America’s Supreme Court has ruled in one of the country’s biggest cases since the pro-choice decision of Roe vs Wade. This time the issue is affirmative action. Positive discrimination in favour of African-American, Hispanic-American and Native American candidates has now been banished from the university admissions process.

The ruling by the Supreme Court justices marks the end of a 60-year campaign and arrives just as “contextual admissions”, which aim to promote “inclusivity”, take off in UK universities.

The US case was the work of Edward Blum, an investor turned legal strategist who believes that racial diversity quotas have fostered injustice, not equality. Using race as a tool by which to judge student admissions “harms everyone”, Blum, 71, says. “You cannot cure the racism of the past with new racism.”

Blum’s case was against Harvard (an Ivy League private university) and the University of North Carolina (which is state-funded), and claimed that preferential treatment given to students of African-American, Hispanic-American or Native American heritage over those who are white or Asian-American violates the US Constitution’s equal protection clause, and also appears to go against the 1964 civil rights act introduced by Lyndon B Johnson, which prohibits race-based discrimination.

One plaintiff is Jon Wang, an 18- year-old with exemplary test scores who was rejected by every elite university he applied to on what he believes are racial grounds. According to Students for Fair Admissions, the campaign group Blum set up in 2014, Wang would have had a 95 per cent likelihood of getting into his chosen universities had he been African-American; those chances were slashed five-fold due to his Asian heritage. “Race in America is one of the most polarising issues we face,” Blum says. “It has no place in the admissions process.”

It is an argument which has a personal resonance for Blum, who is Jewish. Criteria for entry to Harvard were rewritten in 1922 to limit numbers of Jewish students, who then accounted for 21 per cent of the institution’s intake – a group who, like Asian-American students today, received high grades yet suffered “demerits” in their face-to-face interviews. 

“There is a straight line running from the anti-Semitism of the 1920s to the anti-Asian bias that we see at Harvard now,” Blum believes. Many of those losing out today are from working-class families, says Blum. They are not privileged candidates, he insists, but have parents who have laboured as hotel maids, or handymen.

Affirmative action is disrupting the university selection process in Britain, too. Here, however, the division lies along class, rather than race, lines, with the rebalancing act – known as “contextual admissions” – focusing on state school vs privately educated pupils. 

In 2022, 68 per cent of places at Oxford and 72.5 per cent at Cambridge were awarded to state-school pupils – up from 57 per cent and 61 per cent in 2013 (93 per cent of children in England and Wales are state-educated). Last summer, every place for law at Edinburgh University was awarded to students from deprived areas or disadvantaged schools: of 400 applicants living in the country’s poorest postcodes, 168 won a place, while the 555 hopefuls applying from the wealthiest 60 per cent of areas failed to score a single one.

“There’s so much pressure to be able to say, ‘This year we’ve admitted 70 per cent from state schools rather than 55,’” says David Abulafia, historian and life fellow at Gonville and Caius College, Cambridge. This criteria “is not useful if it results in people who are less capable and less well-qualified being admitted, rather than people who are real high-fliers.”

Abulafia says he has spoken with school heads who are “worried about the fact that really good people who might have a distinguished future… might be excluded in favour of people who just don’t perhaps have that extra ounce of ability”; that when it comes to two students of equal standing, the fact one has been privately educated would be used to deny them a place.

“The nub of the problem,” he adds, “is that we need to think about those who are excluded as well as those who are included”; that in the rush to show off about state-school intake, “injustice is being practised towards people who have impeccable A-levels and have been head boy or girl. It’s not the task of universities to sort out the wider social problems of the country.”

Conservative academics cite “mismatch theory” as evidence of what over-reliance on diversity quotas looks like: the notion that pushing students into environments where they would not have naturally ended up hurts, rather than helps them.

“There really is a question whether you’re doing any good when you take people who just can’t keep up,” Abulafia says. “You can actually ruin people’s lives that way.”

Blum points to an affirmative action study from researchers at Duke University in 2013 looking at the numbers of minority students who, after the first year of their degrees, ended up switching from science, technology, engineering or mathematics (STEM) subjects to social sciences or humanities.

They concluded that “the vast majority of minority students would be more likely to graduate with a science degree and in less time had they attended a lower ranked university”; essentially, giving people a leg up does not always necessitate they reach the level of those around them. There can be other problems for these struggling students, Blum adds, whose peers may remind them that they only got their place because of their background. “That’s a terrible burden for kids to carry.”

Still, there are many who believe mismatch theory has been overcooked; that diversity quotas are the only proven way of redressing social imbalance. In the US, affirmative action has been banned in nine states since 1996, with studies showing that enrolment among black, Hispanic and Native American undergraduate students ultimately declines without such policies in place. At UCLA, the number of applicants from minorities fell by half in the two years after the ruling; that institution, along with the University of Michigan, where affirmative action was outlawed in admissions in 2006, have admitted to struggling to build diverse student bodies since. 

Harvard judges hopefuls via a “whole person” review that includes factors such as extracurricular activities, test scores, life experience and socioeconomic background. In an analysis it submitted, “no statistical evidence” of discrimination against Asian-American students was found. The likely ruling against affirmative action, the university believes, has more to do with the fact that the Supreme Court has a Republican majority.

There are concerns that the Harvard case will set a negative precedent for society at large. Companies including Apple, Microsoft and Mastercard have written to the Court in support of the university. A McKinsey report published this year found that low social mobility was likely to affect the nation’s productivity. UK firms are increasingly introducing diversity quotas to the workplace: the BBC has a target of 25 per cent working-class employees in the next three years, while consultancy KPMG is targeting a 29 per cent figure among partners and directors come 2030.

What will happen in the aftermath of the ruling? Steven Teles, professor of political science at Johns Hopkins University and author of a paper comparing affirmative action on either side of the Atlantic, says resistant institutions will “try and figure out how to preserve as much of affirmative action as they can. Given that a lot of these decisions are made deep in the bowels of admissions offices, they have a lot of ways to not fully comply with the spirit of the decision.”

The biggest question now is what exactly a fair admissions policy looks like. Abulafia says a suitable guiding principle can be taken from the Bible: “that ‘you shall not favour the rich in your judgments, neither should you favour the poor’. And I think that’s a good rule of thumb,” he says; “that one shouldn’t be influenced by people who have a lot of money and power. But it can also go the other way – that taking pity on people actually can also lead to injustice.”

He thinks that if tensions over UK admissions continue at the current pitch, a US-style war could be on its way here: “I imagine that we might end up with cases in our own courts over this sort of thing.” The moment you begin “lowering offers for particular people,” he says, “you get into very sticky territory.”