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Courts Face Limits on Color-Blind Equality

Megan McArdle is a Bloomberg View columnist who writes on economics, business and public policy. She is the author of "The Up Side of Down."
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Like many Americans, I am ambivalent about affirmative action.

I believe that racism is not as bad as it once was. I also believe it persists. Furthermore, I believe that the structural legacy of much worse racism in the past has made it harder for black people to get ahead in many ways.

Nonetheless, I'm not sure affirmative action is the right solution. It is an unfair solution to an unfair problem, and even if you are less bothered by this unfairness than by the unfairness of 250 years of slavery, this makes affirmative action politically unstable.

A bigger problem is that it's not really clear whether affirmative action helps the people it's intended to. At the very top schools, it almost certainly does, because ironically, this is where the preferences are smallest. But as you move down the ranks in selectivity and prestige, the evidence is pretty compelling that people admitted with large preferences find it harder to keep up with their classmates, and they are therefore less likely to stay in demanding and remunerative majors or pass professional exams such as the bar.

On the third hand, "push" rather than "pull" solutions have so far proved underwhelming. Well-meaning people persist in believing that the children of affluent white families are disproportionately represented at college and elite magnet schools because they are able to use money to confer educational advantages such as SAT prep classes, but this is false. The racial gap in things such as SAT scores persists even after you control for family income, and whatever the cause is, it's not test prep:

All of this is almost entirely at variance with three facts, all of which are well known among education researchers.

First, test prep has only a modest effect on test scores, on the order of 20-40 points combined for a commercial test preparation service. More expensive services such as a private tutor are towards the high of this range, cheaper sources such as a high-school course towards the lower. Buchmann et al., for example, estimate that private tutors increase scores by 37 points while a high school course increases scores by 26 points.

The average SAT score among those with a family income of $20,000-$40,000 is 1402 while the average score among those with an income $100,000 higher, $120,000-$140,000, is 1581 for a 179 point difference. Even if every rich family had a private tutor and none of the poor families had any test prep whatsoever, test prep would explain only 20% of the difference 37/179. If rich families rely on tutors and poor families rely on high school courses, the difference in test prep would explain only 6% (11/179) of the difference in score.

The second surprising fact about test prep is that it doesn't vary nearly as much by income as people imagine. In fact, some studies find no effect of income on test prep use while others find a positive but modest effect. The latter study finding (what I call) a modest effect finds that in their sample a 2-standard deviation increase in income above the mean increases the probability of using a private test prep course less than whether "Parent encouraged student to prep for SAT (yes or no)."

Since test prep differs by income only modestly and since test prep increases scores only modestly, the effect of income on test scores through test prep is small, Modest*Modest=Small. Contrary to the consensus, test prep can in no way account for the large differences in SAT score by income.

The third fact is that test prep varies by race in the opposite way that people imagine. In the quote above, Chris Hayes suggests that whites use test prep much more than blacks. In fact, blacks use test prep more than whites, as is well documented among education researchers.

I did not do SAT prep in high school, other than in English class, where my private school placed a heavy emphasis on the vocabulary that was, back then, at the heart of the English portion of standardized tests. I did do a GMAT prep course, and worse, I taught several after business school. My experience was basically the same as what Alex Tabarrok notes above: Test prep gave me no benefits that I could not have gotten by spending a few hours reviewing high school math formulas, and it was at best only modestly useful for my students, which is one of the reasons I stopped doing it.

I don't know exactly why the racial gap is so persistent in college admissions, as well as in graduation rates. But persist it does, and as a college degree has become more of a prerequisite for the middle class, this is a major barrier to full economic equality. America is still a house divided, in ways that make us all worse off. It's not hard to see why so many people think affirmative action, as badly as it works, is better than the alternative.

As I say, I'm ambivalent.

Nonetheless, it's hard to see how the Supreme Court could have ruled differently yesterday. The question before the court was not whether affirmative action was allowed; it was whether affirmative action is practically mandatory. The voters of Michigan went to the polls and opted to forbid the state university system from considering race in college admissions. The court was being asked to rule that the state of Michigan was not allowed to do this -- that college administrators should be able to overrule the taxpayers who pay their salaries. This would have been a fairly extraordinary power that you can't imagine extending to, say, the subject of legacy admissions or athletic scholarships.

Of course, legacy admissions and athletic scholarships don't have the same horrible history as race in America. The court had overruled voters in just this way in the past -- not just in the Deep South, but also in northern cities that, for example, tried to put a stop to busing programs. But this was in an era with vastly more explicit discrimination, legal and otherwise. It would have been a pretty big step to ask the court to apply this reasoning to the state of Michigan in 2010.

Especially since so many earlier court interventions failed. Whether you think that the activist courts of the 1960s and 1970s were engaged in judicial overreach, or taking laudable steps to curb the ability of a majority to oppress a minority, you have to admit that their heavy-handed interventions did not produce the color-blind equality of opportunity for which everyone was hoping. Judges could mandate school integration. They could not keep affluent families from withdrawing to private school or distant counties where the buses didn't go. Or from voting for politicians who would appoint less activist judges. The result of two decades of judicial tampering was segregated school systems that offered little more opportunity than their predecessors had, coupled in many cities with appalling concentrations of poverty and a shattered tax base.

Courts could fix many of America's racial problems: They could order an end to Jim Crow and the obviously discriminatory rules that made it impossible for blacks to vote in the South, and see those things happen. But when it came to the subtler mechanisms that confounded full integration, the power of the law faltered. We are still arguing affirmative action precisely because the judicial interventions of the 1970s failed to make affirmative action irrelevant. If these earlier efforts had been more fruitful, today's judges might have been more willing to issue an effective judicial mandate yesterday.

Instead, we got an opinion that was, well, ambivalent. It didn't ban affirmative action, as Justice Antonin Scalia wanted; it also didn't enshrine it in the same sacred constitutional space as the First Amendment. It left a difficult question up to the voters. They may or may not do a good job. But unfortunately, when it comes to the vexing questions that remain about America's tragic racial legacy, the courts haven't done so well, either.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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