Trump's Wrongheaded War On Economic Affirmative Action

The Justice Department now says giving poor kids an edge in university admissions amounts to racial discrimination by “proxy.” Its position is absurd.

The Trump administration has launched the next big fight over affirmative action. In doing so, it is not only rejecting decades of conservative orthodoxy, but is also taking the Republican party from a position of great political and legal strength to one of vulnerability.

Earlier this month, the Justice Department issued a 12-page letter finding that the University of California Davis Medical School has engaged in illegal “proxy” discrimination, favoring Black and Hispanic applicants by giving a leg up in admissions to students of all races who come from less privileged backgrounds.

The complaint focuses on the medical school’s “Davis Scale,” which provides a “continuous measure of socioeconomic disadvantage,” including“parental income and education,” and “growing up in a medically underserved area.” The DOJ claims that because this policy is especially helpful to minority applicants, who tend to be poorer, and because Davis values racial diversity, the practice is tantamount to the kind of explicit racial preferences the Supreme Court struck down in 2023.

That the administration would go after economic affirmative action at U.C. Davis is a story layered with ironies.

U.C. Davis Medical School was the defendant in the famous 1978 Bakke case in which the Supreme Court banned the use of explicit racial quotas in university admissions. The school had set aside 16 of 100 seats for racial minorities, which the court concluded violated the Constitution and the 1964 Civil Rights Act.

The justices in Bakke allowed racial preferences to survive, as long as race was one of many factors. But for decades, conservatives (along with a few liberals like me) argued that economic affirmative action would be the fairest way to achieve racial and economic diversity.

Commenting on the Bakke case in 1979, future Supreme Court Justice Antonin Scalia wrote: “I am entirely in favor of according the poor inner-city child, who happens to be black, advantages and preferences not given to my own children because they don’t need them. But I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer — solely because of his race — to the son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead.”

Other conservative justices, such as Clarence Thomas and Samuel Alito, were also fans of economic affirmative action. In his 1991confirmation hearings, Thomas said he favored such programs: “The kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or Hispanic kid from the inner cities or from the barrios, but I defended that sort of a program [in the 1970s] and I would defend it today.” Likewise, Alito excoriated the University of Texas at Austin for claiming it needed racial preferences to admit “the African-American or Hispanic child of successful professionals in Dallas.”

“I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Alito said.

The UC Davis program — which focuses on economic disadvantage – avoids the Achilles heel of racial preference programs: their focus on privileged minorities. As I testified in the Students for Fair Admissions v. Harvard case, 71% of the Black, Hispanic, and Native American students at Harvard came from the richest 20% of the Black, Hispanic, and Native American populations.

When the Supreme Court struck down racial preferences at Harvard in 2023, it suggested economic affirmative action provided a legal path forward. Conservative Justice Neil Gorsuch, for example, cited my testimony finding that “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni and faculty ” Presumably, Gorsuch was not encouraging Harvard to engage in something he believed to constitute illegal “proxy discrimination.”

The justices in Students for Fair Admissions went after the means of racial preferences, which have also long been unpopular with the public. They never said using race-neutral means to achieve racial diversity was illegal. To the contrary, the justices said diversity goals such as “promoting cross-racial understanding” were “commendable,” and “worthy.”

To be sure, universities have put themselves in a predicament. For decades, they claimed that economic affirmative action could not work to produce racial diversity. Now, when an institution like U.C. Davis Medical School triples the number of underrepresented minority students using economic means, it raises eyebrows. Conservative critics ask: Were they lying then, or are they lying now?

The evidence has long shown that economic affirmative action, by capturing the legacy of racial discrimination, can produce considerable amounts of racial diversity. The main reason universities preferred racial preferences is that they were cheaper: Admitting full-pay privileged minority students costs less than providing financial aid to meaningful numbers of working-class students of all races.

If the Trump administration is looking for cheating, it should examine institutions whose racial diversity numbers have magically remained high, despite their failure to adopt new economic affirmative action programs. UC Davis Medical School, by contrast, has an affirmative defense for its good racial diversity numbers: the socioeconomic boost it provides.

Fifty years ago, when conservatives attacked racial quotas at U.C. Davis Medical School, they had the upper hand politically. The new attack on economic affirmative action at Davis provides Democrats a golden opportunity to ask: What’s wrong with Scalia’s idea of giving a break to “the poor inner-city child, who happens to be black”?