Affirmative action/racial preferences

Supreme Court justices appear skeptical of overturning Michigan ban on affirmative action

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Several justices question the logic of overturning Michigan's ban on the consideration of race in admissions.

U.S. says its guidance on affirmative action still stands after Fisher decision

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Obama administration tells colleges they need not change policies in light of recent Supreme Court decision.

Higher education groups enter another Supreme Court case about race and admissions

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Only months after a ruling on affirmative action, higher ed groups again turn to the justices -- this time urging that Michigan's ban on the consideration of race in admissions be overturned.

Essay on Supreme Court decision on affirmative action

The Supreme Court just kicked the latest affirmative action case (Fisher v. University of Texas), back down to an appeals court, effectively avoiding the big issues of race and class in America – at least for now. Abigail Fisher claimed that the University of Texas at Austin violated her rights by considering race in its admissions process. Fisher is a white woman who was not admitted to the University in 2008.

The Supreme Court claims that the U.S. Court of Appeals for the Fifth Circuit did not subject the Fisher case to the appropriate standards, in particular: Are the means for ensuring campus diversity narrowly tailored to that goal? And can the university achieve diversity via mechanisms that do not require racial classifications?

Despite the decision to bounce the case back, interesting undertones can be gleaned from Justice Anthony Kennedy’s 7-1 majority opinion, and particularly the two concurring statements from Justices Clarence Thomas and Antonin Scalia. Thomas and Scalia took the opportunity to add their distaste for the entire idea that universities are entitled to use racial considerations in composing their communities. Justice Thomas asserted that "a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."

The rejection of affirmative action logic, found in Thomas and Scalia, was foreshadowed by Justice Roberts’s earlier slogan, from a 2007 decision, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of
race." Foes of affirmative action, including some conservative members of the court, seem convinced that we’re now living in a post-racial society, and the policy ameliorations of the past have become the reverse discriminations of today.

One of Ronald Dworkin’s last articles (before his death in February) decried the conservative rejection of affirmative action, predicting that the court would probably overturn the 2003 Grutter v. Bollinger decision, which allowed for race considerations in admissions. That may still happen, but not yet.

Dworkin suggested that affirmative action is no more discriminatory than other preferential forms of college admission, including preference for good athletes where universities have strong athletic programs. Institutions are entitled to have reasonable preferences -- higher scoring on standardized tests, for example, puts lower-scoring individuals at a disadvantage. As Dworkin put it, "the Constitution does not prevent regulative legislation that gives advantage to some over
others – to optometrists over oculists, for example – when the legislation serves a ‘rational’ purpose that reflects no prejudice or favoritism." But this last clause was precisely the sticking point, since Abigail Fisher’s case asserted that race consideration in Texas admissions violated her constitutional rights with prejudiced policy. Dworkin found it absurd that the university could be interpreted as prejudiced against white students, since it is overwhelmingly white. Dworkin also dismissed any white resentment (for being passed over), suggesting that the wider moral perspective revealed rational preferences in the affirmative action policy, not just favoritism. He voiced the Left’s position that the higher social good of liberal tolerance is the rational grounding that renders resentments unjustified.

This underlying rational aspect of race consideration is articulated in Sandra Day O’Connor’s 2003 Grutter v. Bollinger endorsement of the Court’s earlier claim that student body diversity is a compelling state interest and justifies the use of race in university admissions. The moral reasoning is that greater campus diversity breaks stereotypes and xenophobia, and students will emerge from these experiences with greater tolerance and less prejudice.

Three important objections can be raised against affirmative action logic, and last month’s Court ruling expresses some of these critiques in its decision. First, this specific demarcation of rational preferential treatment from regular garden-variety discrimination seems to beg the question. The general point – that rational preferences can be positive and defensible – is not the issue. But this specific designation of good and bad preference is the aspect that needs greater warrant.

Using this logic, for example, Dworkin argued that it is not enough to get black students on campus in Texas – a task easily accomplished by an existing law that takes the top 10 percent of Texas high school students and therefore draws smart, poor, black students from geographically black high schools. Judge Alito suggested, while hearing the case, that this 10 percent rule sufficiently ensures the sought-after student diversity. But supporters of affirmative action, like Dworkin, argued that this would not be the right sort of diversity, because it would feed white stereotypes that blacks are poor. Supporters of affirmative action in Texas argued that the university should be encouraged to cherry-pick black students from middle- and upper-class backgrounds in order to break campus stereotypes.

Such fine-grained optimization of diversity is a multiple-edged sword for the state to legislate. For one thing, it’s hard to see why this cherry-picking isn’t already redundant to the existing mechanism of merit admissions, because if a smart black student is from a middle-class family then she already has many of the supportive ingredients to be selected by the institution like every other middle-class student. For this reason, a racial preference may fail the legal strict scrutiny requirement that it be the "least restrictive means" for achieving its goal.

Moreover, the very criterion of "breaking stereotypes" (as rational justification) is a sticky wicket, because it radically opens the floodgates of equally reasonable complaints. Latinos in every economic class will need to be cherry-picked, as will Asians and every other group. If there are not enough gays and lesbians on campus to defuse homophobia, institutions will need to protect slots for gays and lesbians in every economic and racial category. Transgender students will not just need representation, but representation from different economic backgrounds. And Asians who are bad at math and Jews who prefer football to studying will need special recruitment, in order to break down those pernicious widespread
stereotypes on campus. In short, "breaking stereotypes" is an over-inclusive criterion, and it seems to fail the strict scrutiny expectation that a law or policy be “narrowly tailored” to achieve its goal or interest.

Secondly, Dworkin and other supporters think it’s obvious that the university is not guilty of black favoritism, because the institution remains so demographically white. But this ignores the possibility that lefty academics (otherwise known as academics) could be prejudicially biased in favor of minority students, even when they are not themselves minorities. Reverse discrimination can be ideologically motivated. I take it this is a major critique of academe, from the Right – namely, the academy’s general obsession with the subaltern.

White guilt is stronger in the academy than in any other arena of American culture, so it’s not impossible that reverse discrimination has systemic reach in this narrow domain. One way to assess this possibility is to measure the number
of black applicants against the number of blacks admitted. Similar numbers there might be suggestive of institutional reverse discrimination, and this was essentially Justice Rehnnquist’s claim in his dissent for Grutter v. Bollinger. Moreover, Rehnquist argued, this bias was more troubling in the University of Michigan Law School case (Grutter), because the overall number of Latinos admitted from 1995-2000 was only half that of African Americans. The criterion of diversity, therefore, is not producing anything like a representational spread of U.S. demographics. Of course, none of this may indicate favoritism per se, but just a broken haphazard system that’s too unorganized to even have an agenda.

That’s not exactly good news either.

Thirdly, we have come a long way from the original purpose of affirmative action, if the conversion of on-campus white psyches is the new rational justification. President Johnson’s policy started as a legitimate leg-up for black people – a boost for opportunity. But the newer logic holds that affirmative action will better-ensure that white people will think better thoughts about people of color. This moral argument appears to underpin the Supreme Court’s logic in Grutter v. Bollinger, where Justice O’Connor argued that race preference policies would be a necessary evil for only another 15 years (25 years from the original opinion).

When President Johnson first instituted affirmative action, one of the underlying purposes was reparation to the descendants of former slaves, many of whom were victims of Jim Crow bigotry. African Americans who felt the sting of racism directly were helped by the policy. The goal of increased diversity, in schools and the workplace, was intimately connected to this reparation function of affirmative action, but that is no longer the case. In today’s America, many of the people who benefit from diversity policies are not disadvantaged African Americans, but Latinos, Indians, Africans, Vietnamese, Iranians, Pakistanis, Chinese, Koreans, and so on. While many of these groups have faced terrible hardships, they have not been enslaved with the approval of the United States.

We’re not living in a post-racial age, in the sense that we all see past skin color, speech accents and cultural differences. But we are living in a post black-and-white era of discrimination, in the sense that we now have many additional kinds of discrimination (brought on by melting pot trends). Prejudice is not as uniform as it used to be, and now we have micro-prejudices that cannot be legislated away; Puerto Rican Americans stereotype Mexican Americans, who turn around and stereotype African Americans, who in turn stereotype Korean Americans, who then stereotype Japanese Americans, who stereotype Chinese Americans, who tend to stereotype Pakistani Americans, who stereotype Indian Americans, and so on.

Just after the civil rights era, huge immigration spikes started for Asian and Latin American populations. In the 1960s most immigrants came from Europe, so the color question remained acute. Prejudice really was more of a black-and-white issue at that time. But starting in the 1970s there has been a huge influx of color. In 1960, only 9 percent of immigrants were Latin American and 5 percent were Asian. Compare that with 2011 immigration, when 52 percent were Latin American and 28 percent Asian. The color question has changed in America and this has had implications for the logic of affirmative action.

The "diversity argument" that Justice O’Connor proffered in Grutter will probably not survive a substantial challenge because it tries to catch a specific needy demographic – African Americans – with a wide net that also benefits many non-African Americans of color. It would have been better to keep the argument focused on reparation for descendants of slaves, because that smaller net captures the right demographic group. But this argument is problematic for other reasons, namely the historical distance between today’s African-American students and slavery. Switching to an economic criterion for preferential treatment results in two improvements: poor kids get into elite schools and poor minorities are captured within the criterion. But using only the economic criterion creates the stereotyping problems that Dworkin was worried about -- namely, only poor African Americans will be represented on campus.

What O’Connor should have argued was not that "diversity" policies need 25 more years of legal protection (her actual argument), but slavery reparation needs those years of legal protection.  That would have been the mechanism needed to keep African Americans inside the affirmative action cohort and other people of color outside the cohort. One wonders, however, how compelling that argument sounds to contemporary American ears, especially when we have a black president in office.

Many middle-class African Americans feel that we’ve outgrown affirmative action. President Obama, for example, has stated that his own privileged daughters don’t deserve affirmative action preferences.  Instead, he argues, low-income students of all races should be given preferential treatment. At the same time, his Department of Justice supported the race-based admissions in the University of Texas case.

When Asians score their way into all the slots at the good colleges, will whites argue that they were discriminated against? Actually, Asian scholastic excellence is already so powerful that Asians have to be discriminated against to keep them from overpopulating competitive programs. As recounted by William Chase in an article in The American Scholar, a Princeton University study analyzed the records of more than 100,000 applicants to three highly selective private universities. "They found that being an African American candidate was worth, on average, an additional 230 SAT points on the 1600-point scale and that being Hispanic was worth an additional 185 points, but that being an Asian-American candidate warranted the loss, on average, of 50 SAT points.”

The time has come, I submit, for us to embrace a post-affirmative action future. There may be very good arguments for maintaining preferential treatment for African Americans specifically, but those arguments will probably need definitive detachment from current affirmative action logic. Since African Americans continue to be underrepresented in today’s universities – despite all-time-high representation of nonwhite students – some policies should probably return to the language and logic of reparation (rather than just equal opportunity). This battle is still fightable and winnable, but it will need to start afresh.

As far as overall diversity goes, we might bite the bullet and assert – independent of the affirmative action tradition – that we want a pluralistic campus that reflects our national melting pot. To that end, we might create a quota lottery that replicates, on campus, the same racial demographics of the whole nation (white = 75 percent, Latino = 15 percent, black = 12 percent, Asian = 5 percent, and so on). But the problem here is now obvious. We would need to actively restrain one of the most impressive academic racial groups (Asians) in order to force them to conform to their tiny demographic percentage. This seems both unethical and unwise.

Whatever remains of the diversity argument and the affirmative action mechanisms should be rerouted entirely and enlisted to address the bigger challenge of our time, economic disparity. Ensuring access to poor students of every race is not only pressing, but has the added benefit of being solvable by legislative means. Now that the Court has remanded the case, things will be status quo for the time being. But the demand for strict scrutiny here seems like a technical dodge, and won’t stave off the changing tides of American social justice.

Stephen T. Asma is professor of philosophy at Columbia College Chicago. He is the author of seven books, including Against Fairness (University of Chicago Press), On Monsters: an Unnatural History of Our Worst Fears (Oxford University Press) and The Gods Drink Whiskey (HarperOne).


Essay calls for consideration of class in affirmative action

Last month the U.S. Supreme Court announced its ruling in Fisher v. University of Texas, reiterating that race-conscious college admissions policies are subject to "strict scrutiny" – a rigorous legal standard. Writing the opinion for a 7-1 majority, Justice Anthony Kennedy stated that when universities use race-based affirmative action, the courts "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

In fact, the issue seems far from settled. Fisher will be reconsidered by the U.S. Circuit Court of Appeals for the Fifth Circuit, and the Supreme Court agreed to hear an additional case this fall – Schuette v. Coalition to Defend Affirmative Action – related to affirmative action in Michigan. At issue in Schuette is the constitutionality of statewide bans (usually enacted via popular referendum) on using race in admissions or employment. Because popular support for traditional, race-based preferences has dwindled over the past decade, and Fisher and Schuette are still in play, many Court observers suspect race-based affirmative action will be curtailed significantly if not struck down entirely. If that happens, it seems reasonable to think diversity at our nation's selective institutions of higher education will be radically diminished.

But that’s by no means inevitable. Many states have already faced prohibitions on race-conscious admissions, and have developed innovative admissions strategies to maintain and even increase diversity at their flagship institutions. In some cases, they’ve also managed to increase an even more underrepresented population on campus – poor students.

That’s what happened in 2008, when Colorado faced a ballot initiative seeking to prohibit consideration of race in college admissions. In response, the University of Colorado Boulder (CU) developed a class-based affirmative action system that would serve the university’s interest in admitting a broadly diverse class while complying with the proposed ban on race-conscious admissions. Even though the initiative did not pass, CU went ahead and enhanced its admissions process to give additional consideration to disadvantaged applicants.  In 2011, when this class-based system was fully used for the first time, CU enrolled the most socioeconomically and racially diverse freshman class in its history.

So how did CU do it?

The university developed two statistical measures, which its admissions officers now use to identify not only those applicants who have faced adversity, but also those who have demonstrated extraordinary academic achievement in light of their circumstances. The first measure – the "Disadvantage Index" – essentially tells us how an applicant’s socioeconomic background has impacted his or her chances of enrolling in college. The second measure – the "Overachievement Index" – tells us how an applicant’s high school academic credentials (e.g., SAT or ACT scores) compare to those of students with similar backgrounds. Ultimately, the disadvantaged and overachieving applicants identified by these indexes receive a leg up in the admissions process.

Controlled experiments, summarized in an upcoming issue of Harvard Law & Policy Review, showed promising results. First, using the race-neutral indexes to replace race-conscious admissions increased acceptance rates not only for economically disadvantaged applicants, but also for racial minorities. Moreover, analyses suggest some “class-based admits” – those who wouldn’t be accepted without a class-conscious admissions policy – may fare well in college. Specifically, those identified by the Overachievement Index are predicted to earn higher grades and graduate at higher rates than typical CU undergraduates.

The unprecedented diversity of the freshman class of 2011 seems to validate the experimental findings, but to be fair, many factors outside admissions policy can influence campus diversity. At CU, for example, expanded recruitment, outreach, and student retention efforts deserve much of the credit. Class-based affirmative action cannot sustain socioeconomic and racial diversity on its own; universities need comprehensive strategies that not only grant additional consideration to disadvantaged applicants during the admissions process, but also encourage them to apply in the first place and support their academic development once they’ve arrived on campus. In their report "A Better Affirmative Action," Richard Kahlenberg and Halley Potter document this sort of thoughtful planning in nine states where race-conscious admissions have already been banned.

Through coordinated recruiting and outreach and carefully designed admissions policies, universities in most of those states have boosted the socioeconomic and racial diversity of incoming classes. Stanford economist Caroline Hoxby has uncovered another promising approach – personalized recruitment materials – that may substantially increase college access for thousands of high-achieving, low-income students who aren’t applying to selective colleges. This research has not gone unnoticed. In recent months, we’ve seen a rising tide of calls from across the ideological spectrum to seriously pursue class-based affirmative action, at a time when enthusiasm for race-based preferences seems to be waning.

The point here is not that universities should revamp their recruitment materials or adopt the Disadvantage and Overachievement Indexes and expect a seamless transition away from race-conscious admissions. Rather, the point is that social scientists have been hard at work for quite some time developing, refining, and studying class-conscious strategies that can advance the goals and social purposes of the universities that use them. The University of Colorado recognized the value in this line of research, and took proactive steps to support campus diversity by considering class in its admissions process.

Given last month's Fisher ruling and the Schuette decision to come, other university administrators should follow suit. Sooner would probably be better, to avoid the hasty adoption of class-based policies in the scramble of legal uncertainty. As Greg Roberts, the dean of admission at the University of Virginia, recently pointed out, "If there are changes to how we define diversity then I expect schools will really work hard at identifying low-income students." For those of us who care deeply about equal opportunity and social justice, class-conscious admissions policies offer unique promise: They focus our attention on socioeconomic integration, and may open new pathways to higher education for students who have traditionally faced economic, social, and institutional barriers.

Matthew Gaertner worked with the University of Colorado Boulder office of admissions to create these class-based admissions indexes. He is currently a research scientist in the Center for College & Career at Pearson.


In wake of Supreme Court ruling, college groups issue statement on diversity

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In wake of Supreme Court ruling, 37 college groups issue declaration on educational value of having a diverse student body.

Essay on the meaning of the Supreme Court ruling on affirmative action

The Supreme Court this week decided Fisher v. University of Texas.  It did not decide, as many had expected, what the future affirmative action in American higher education would be. Instead, the Court punted, putting off for a future day any definitive ruling on the rules of engagement for affirmative action.

In a nutshell, rather than rule on the merits of affirmative action, seven of eight Justices simply held that the lower court had not applied the correct legal standard, and sent the case back for reconsideration.  Two justices, Clarence Thomas and Antonin Scalia, made it clear they would end all race-conscious affirmative action right now.  One justice, Ruth Bader Ginsburg, made it clear she would keep the law exactly as it now stands, under which affirmative action is permissible. Six justices are still playing it close to the robe, waiting for another day.

The Fisher case arose against the backdrop of the peculiar history of affirmative action in Texas.  In 1996, in a case entitled Hopwood v. Texas, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that led to the temporary end of affirmative action in Texas. In  Hopwood the court struck down the University of Texas Law School’s affirmative action program, holding that the pursuit of diversity in education was not a "compelling governmental interest" and that the use of race and ethnicity by the Law School violated the 14th Amendment’s Equal Protection Clause.  Hopwood was interpreted by the Texas attorney general as effectively banning all race-conscious admissions programs in all of the state’s public universities and colleges, at all levels of higher education.

In 1997, responding to Hopwood, the Texas legislature enacted "The Top 10 Percent Law," mandating that any student finishing in the top 10 percent of his or her high school class be granted automatic admission to any Texas state university.  The purpose of the law was to enhance the diversity at public universities in Texas.  Although on its face the law was race-neutral — it simply imposed a mathematical threshold that guaranteed admission to the top 10 percent of all high school students — it worked to modestly enhance diversity, because so many Texas high schools were predominantly populated by students of only one race.

The immediate need for this system ended, however, in 2003 with the Supreme Court’s decision in Grutter v. Bolinger, upholding as constitutionally permissible the University of Michigan Law School’s aspiration to enroll a critical mass of minority students. Grutter, along with its companion case, Gratz v. Bollinger, formed a pair of 14th Amendment bookends that for the last 10 years had marked the boundaries of what was permissible and impermissible in affirmative action in admissions.

The Grutter and Gratz decisions built on the views of Justice Lewis Powell in the Supreme Court’s first higher education affirmative action decision, Regents of the University of California v. Bakke, decided in 1978, in which Justice Powell authored a compromise opinion that applied a rigorous legal standard  known as "strict scrutiny" to affirmative action, a standard that requires that a university’s use of affirmative action be justified by a "compelling" justification, such as the achievement of a diverse student body, and employ a mechanism to achieve that end which was "narrowly tailored."  For Justice Powell, this requirement meant that the admissions process had to be holistic, not a mechanistic quota designed to achieve levels of diversity that mirrored the racial and ethnic demographics of the general population.

Grutter, which upheld the Michigan Law School’s affirmative action program, held that college could employ a "holistic" approach to admissions calculated to achieve a "critical mass" of minority students within a student body, based on what Grutter recognized as a compelling interest in diversity. Gratz, in contrast, struck down Michigan’s undergraduate admissions program, because it was mechanistic, not holistic, actually assigning fixed numerical points to students based on their minority status. This rendered the undergraduate program too rigid and quota-like, and in the view of the Court, unconstitutional.

Now we come to Fisher itself. The plaintiff, Abigail Fisher, applied to the University of Texas at Austin in 2008, but was denied admission. She instead went to Louisiana State University. Fisher was in the top 12 percent of her high school class, and thus could not benefit from the Texas 10 percent regime, but was instead relegated to competition for the remaining seats in the freshman class admitted outside the 10 percent system.  In the year she applied, approximately 81 percent of the class at UT was filled by the 10 percent system, leaving Fisher as one of the applicants for the remaining 19 percent of the class. Fisher alleged that she was denied admission because Texas used the sort of racial and ethnic preferences approved in the Michigan Grutter ruling to add additional diversity to the Texas student body in that remaining 19 percent of the class, claiming that her academic record was stronger than the records of minority students who were admitted over her.

Texas disputed Fisher’s assertion, stating that under the holistic approach to admissions it employed to fill the final portion of its class, Fisher could not prove she would have been admitted, even if Texas had not used race and ethnicity as plus factors to enhance diversity. Fisher in turn argued that whether or not she could prove that she would have been admitted to Texas but for her race, she still was entitled to participate in an admissions program that was not tainted by unconstitutional race discrimination. Since the 10 percent system already increased racial diversity at Texas, Fisher argued, Texas could not engage in piling on, seeking yet additional diversity in rounding out the profile of the student body.

Fisher did not launch a wholesale challenge to the Grutter ruling, but instead framed her case in a more measured manner, arguing that whether Grutter was right or wrong, it ought not apply when a state has demonstrated that a race-neutral alternative exists, such as the 10 percent system. In response, Texas argued that the 10 percent system did not achieve sufficient diversity, either quantitatively or qualitatively, to vindicate its compelling interests in achieving a more diverse student body.

This week's opinions from the Supreme Court did not resolve the issue. The seven-Justice majority opinion of Justice Anthony Kennedy interpreted the lower court ruling  in the case, by the U.S. Court of Appeals for the Fifth Circuit, as failing to conscientiously apply the "strict scrutiny" test.  Instead, as the majority saw it, the lower court had merely required that the University of Texas demonstrate that its decision to reintroduce race as a factor in  admissions be made  "in good faith." This "good faith" standard, the majority held, was inconsistent with the demands of Bakke, Grutter and Gratz, and therefore the Supreme Court remanded the case back to the Fifth Circuit to apply the correct standard.

Many of us will now be parsing the various opinions in Fisher sentence by sentence for additional clues as to where the Supreme Court may eventually be heading with affirmative action in higher education.  Here are a few preliminary thoughts.

Abigail Fisher’s lawyers, as previously noted, did not seek an outright overruling of the Bakke / Grutter / Gratz line of cases.  Are there any hints to be gleaned from Fisher as to what the future of that line of precedent will be?  Justice Kennedy’s opinion included this critical yet cryptic sentence: "We take those cases as given for purposes of deciding this case." Note the careful  wording:  He did not say "we reaffirm those cases." He only said that the Court would "take” the cases “as given” "for the purposes of deciding this case," leaving open the possibility that the Court would not take those cases as given for the purposes of deciding a future case.

There is more. Justice Kennedy’s opinion noted the mandate of Grutter that judges defer to the educational judgment of university educators regarding the benefits that flow from a diverse student body:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” that the university deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter.

Defenders of affirmative action may seek some solace in this passage. But the opinion of Justice Kennedy then goes on, in a critical section, to describe the issue on which universities should not receive deference — the decision that race-conscious affirmative action is necessary to achieve the goal of a diverse student body:

The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the university’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity.

In short, it will now remain open, in the remand of the case in Fisher, and in any future challenges to affirmative action brought anywhere else, for the opponents of affirmative action to argue that the means employed are not "holistic" within the framework of Grutter, or more critically, may not be necessary, when there are race-neutral alternatives, such as the 10 percent system, that will work just as well.

There are additional clues to where the Court may be heading that may be found in the oral argument in the case, conducted last October, two related phrases rose to prominence in that argument.

The first, “critical mass,” described the ends that Texas sought to achieve through its admissions policies, the achievement of a critical mass of minority students in its student body. That phrase comes directly from Grutter.  The second phrase, “holistic admissions,” describes the means by which this critical mass was to be achieved: the employment of a flexible, individualized examination of each prospective student’s application, in which multiple factors, including racial and ethnic identity, are included in the admissions decision mix.

During the course of the oral argument the more liberal justices on the Court repeatedly sought to frame the issue as whether the existing principles of Grutter were to be displaced simply because Texas had adopted its 10 percent system. Framed this way, these more liberal justices could make a decent case in favor of Texas, for while some additional diversity was generated by the 10 percent rule, it was not overwhelming by any means, they suggested, and Texas might plausibly argue that it still needed to do more. Moreover, as Justice Ginsburg noted, while the 10 percent rule was race-neutral in its surface math, it was not race-neutral in its underlying motivation, for the Texas legislature had adopted it in the pursuit of diversity, as a clever end-run around a federal appeals court ruling that had for a brief window of time prohibited all race-conscious affirmative action in the state. And ironically, as Ginsburg observed, the 10 percent system only worked to enhance diversity because housing patterns and school zones in Texas (as in many places in the country) are so racially segregated that many schools are almost entirely of one race or ethnic group.

As an ideal, the holistic affirmative action admissions program advanced by Texas, by the majority of voices within American higher education, has a certain humanistic beauty that is almost irresistible.  At its best, the system mutes the stigma that has at times been attached to affirmative action, a stigma heavily emphasized by Justice Clarence Thomas in his writings on the issue, in which the subliminal message sent to the minority beneficiaries of race-conscious admissions is, "You really don’t deserve to be here on your own merit, but we are letting you in out of guilt and compassion for past wrongs done to those in your group, and the lingering effects of those wrongs." Holistic affirmative action admissions programs flip this, sending instead the positive message: "You do deserve to be here on your own merit, and that merit includes what your identity and experiences will bring to enrich the collective educational
experience for all on the campus, and in turn what that enriched experience will do for the ultimate betterment of society."

Nonetheless, today’s decision by the Supreme Court, which focuses on whether race-conscious admissions truly remain necessary, was presaged by the skeptical questions from a number of justices in oral argument in the case, suggesting that they may regard "critical mass” as really a "hypocritical mask." These skeptical justices repeatedly challenged Texas and its co-defenders of affirmative action to explain when a critical mass is achieved.

None of the advocates would supply a crisp answer. Donald Verrilli, the solicitor general for the administration of President Obama, gave it a noble try, eloquently defending the pursuit of critical mass with the argument that our national "strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union." To enrich the educational experience of students at American universities, to expose them to a variety of fellow students from diverse races, ethnic groups, religions, cultures, nations, or life experiences, there must be enough of each group in the mix to both make the cross-exposure meaningful.  In turn, a critical mass of representation is required to ward off the damage to minority students that might ensue from the tokenism and isolation incident to small numbers.  

The skeptics, however, seemed unmoved by the lofty articulation of the goal and unpersuaded by the logic of its execution. Again, much of what surfaced today in the Court’s formal opinion was presaged during the oral argument.  Chief Justice John Roberts repeatedly asked how the Supreme Court could do its job of deciding whether the pursuit of a critical mass was constitutional if Texas refused to explain how it knew when it had achieved critical mass. Moreover, since Texas relied entirely on an applicant’s  self-description of racial or ethnic identity, how did Texas even know what the identity of its enrolled students were?  If an applicant is 1/8 Hispanic, Roberts asked, did Texas regard it as ethically permissible to check the box “Hispanic” on the application?  What if the student was 1/32 Hispanic? Justice Scalia wanted to know if it was a classroom-by-classroom determination. In a deeply uncomfortable moment, Texas conceded that it did not need to prime the pump to enroll more students of Asian descent, as their numbers were already robust, a point that the skeptics saw as approaching a system of racial spoils. Justice Alito thus asked whether critical mass varied by ethnic group. Why, he asked, did Texas lump together all Asian Americans?  Was Texas confident, he continued, that it had a critical mass of Filipino Americans?  Cambodian Americans?

What the skeptics seemed to be suggesting was that "mass" was indeed a "mask," a euphemism employed to avoid what has long been constitutionally forbidden, the simplistic use of race for race’s sake, a "mirror" conception of equal justice in which, in rough-and-ready terms, critical mass is not deemed achieved until the representation of minorities in institutions such as the University of Texas generally approximates their representation in the polity as a whole. Thus Justice Alito asked pointedly, whether the definition of critical mass in Texas would be different from the definition in neighboring New Mexico.

If the skeptics were troubled by meaning of critical mass, however, they were equally troubled by the meaning of holistic. And here, in many ways, the arguments cut more deeply. The ideal of holistic admissions has an impressive lineage. This was the approach advanced by Harvard University and other Ivy League institutions in the Bakke case. In Grutter, five Justices, led by Justice Sandra Day O’Connor, made the permissibility of holistic admissions the formal law of the land, though Justice O’Connor’s opinion ended with the suggestion that this might only be acceptable for another 25 years.

Despite the beautiful promise of these arguments, however, the skeptics clearly doubted that the universities really mean it, or really mean it the way they say they mean it. No one on the Supreme Court seemed doubtful of the potential benefits of a holistic approach to admissions that did not bringing race or ethnicity into the picture. The doubt was engendered by the suspicion that when universities include race and ethnicity, the holistic ideals become compromised and adulterated by other pressures within the rankings hierarchy of higher education, pressures that push universities toward efforts to get the right additional minority students and the right kind of those minority students. Why did Texas really augment the 10 percent system with its holistic race-conscious admissions program? Was it because it did not get enough minority students from the 10 percent regime, or was it because the students it got under the 10 percent program were not, in the eyes of Texas, good enough?

On this point, in one of the most awkward moments in the oral argument, the justices struggled with what to make of an African-American applicant who was the child of two well-educated, successful and affluent professionals. Should or should not such an applicant be the beneficiary of racial "plus points" in the admissions process? What all the justices surely knew, whatever side they might be on, was that such an applicant is typically perceived as highly desirable by universities, because the applicant helps on the numbers in two ways, improving the both the university’s diversity and academic profiles. When the advocate for Texas suggested that Texas needed such affluent minorities as a diversity counterpoint to the minorities generated by the 10 percent system, which were heavily composed of students from entirely minority-race schools from poorer, less academically elite circumstances, Justice Alito blanched, as if this were a duplicitous betrayal of the blue collar roots of affirmative action, an elitist bait-and-switch. "I thought that the whole purpose of affirmative action," he lamented, "was to help students who come from underprivileged backgrounds."

Tellingly, the issue also troubled Justice Kennedy, who emerged as the author of this week's opinion. He seemed turned off by such unabashed race-consciousness, asserting that for Texas, "what counts is race above all.”  This, Kennedy, claimed, was the necessary conclusion to be drawn from Texas’ answer to Justice Alito’s questions. "You want underprivileged of a certain race and privileged of a certain race," Kennedy observed. "So that's race."

To all these Supreme Court skeptics, the term “holistic” appears to have taken more the hue of universities wanting to have their cake and eat it too. Universities want the highest possible academic credentials, which works to enhance their reputations and rankings, yet they also wanted the highest possible diversity numbers. Adding to the skeptics’ suspicion was the problem of how these holistic reviews, as a practical matter, are really undertaken. Justice Scalia thus inquired, with only thinly disguised facetiousness, how many people a ruling against affirmative action would put out of a job, since Texas must have employed a huge number of people in its admissions office to process all these highly individualized holistic reviews.

We will surely hear alternative narratives emerge on the meaning of this week's ruling. Some will say that it portends that affirmative action is hanging by a thread.  Others may characterize it as affirming the framework adopted in Grutter.  

One point, however, seems clear:  the holistic approach to admissions that most in higher education have embraced for decades is under ever-increasing legal stress. In Grutter, Justice O’Connor’s opinion suggested that the clock may run out on race-conscious admissions after 25 years — or 2028. This week's ruling, at the very least, signals that universities should begin to seriously prepare for a much sooner date.  

Contemplating that possibility, a holistic approach to admissions may be imagined that does not include any injection of consideration of race or ethnicity. A university might adopt an approach to admissions that is “holistic” in the simple sense that it is not single-mindedly driven by the academic numbers, such as test scores, grade point averages, or Advanced Placement courses. Leadership, altruism, civic engagement, public service, passion for social justice, creativity, entrepreneurial spirit, resiliency, drive, ambition, the capacity to overcome adversity, all the polymath possibilities that might comprise true grit, could be included in a student’s evaluation, factors resonant in their connection to our most romantic renditions of the American dream.

And indeed, the vast majority of American universities that employ race-conscious holistic admissions programs claim that race is simply one ingredient spicing this richer bouillabaisse.  For those institutions that really believe that these character traits enhance the quality of a student body, the Constitution of the United States, as now redefined by the Supreme Court, stands as no impediment.  And whatever one’s politics, one’s views of affirmative action, one’s views of the competing narratives explaining Fisher, an admissions system that includes some flexibility to reward grit will be a good thing for higher education and for society, fully resonant with the ever-evolving reinterpretation of the most enduring traditions of the American Dream.

Rod Smolla, a constitutional law scholar, is president of Furman University. He is the author of The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (NYU Press).


Consequences of racial and economic stratification in community colleges

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Segregation in higher education remains largely ignored, but two new studies show increasing concentrations of disadvantaged students at community colleges can affect completion rates.

Presidents in denial on use of race-based admissions preferences (essay)

Some time between now and the end of June, the U.S. Supreme Court will issue its ruling in a major case challenging affirmative action policies in higher education, Fisher v. University of Texas. Many legal observers believe a conservative court will significantly curtail or even eliminate the ability of universities to use race in admissions, but according to a recent Inside Higher Ed poll, college presidents are much more confident that the decision’s impact will be minor.

Which group is most likely to be correct?

In the case, Abigail Fisher, a white student, sued the University of Texas at Austin for using race in admissions decisions to boost the proportion of black and Latino students, contending it is a violation of the 14th Amendment’s Equal Protection Clause. UT argues that its use of race is permitted by the U.S. Supreme Court’s 2003 ruling supporting affirmative action at the University of Michigan Law School, Grutter v. Bollinger.

According to the Inside Higher Ed poll, by 77 percent to 23 percent, college presidents believe the U.S. Supreme Court will stop short of imposing "major limits on the consideration of race in the admissions process.” Some 51 percent of presidents suggest the court will impose only “modest limits” and 26 percent expect the justices to “uphold current policies.”

On one level, the confidence is understandable. In the earlier Supreme Court challenges – the 1978 Bakke case and the 2003 Grutter litigation – supporters of affirmative action managed to dodge the bullet. Despite dire predictions at the time, the Court ended up allowing universities to continue to employ race in admissions. Despite the unpopularity of affirmative action programs among the broader American public, the nation’s military, business and educational establishments managed to sway a narrow majority of justices in 2003, and more than three-quarters of university presidents expect the same thing to happen again in the Fisher litigation.

But this time around, the result may well be different for two reasons: the make-up of the U.S. Supreme Court has changed, and the on-the-ground experience with alternatives to affirmative action is more fully developed.

A decade ago, when the Supreme Court ruled in the Grutter case, Justice Sandra Day O’Connor cast the decisive fifth in favor of allowing universities to employ race in admissions. She has since been replaced by the much more conservative justice, Samuel Alito; Justice Anthony Kennedy, who dissented in Grutter, is the new swing justice.

One of Kennedy’s major objections to the Grutter decision involved Justice O’Connor’s handling of the rule that universities seek “race-neutral” ways of achieving racial and ethnic diversity prior to employing explicit racial preferences. This judicial requirement has long been in place under the theory that because the Constitution disfavors categorizing individuals by race, if universities can achieve racial diversity in another way (by, for example, favoring low-income students of all races), they should do so.

O’Connor’s Grutter opinion irked Kennedy because she said of the University of Michigan: “We take the Law School at its word that it would ‘like nothing better to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” In dissent, Kennedy replied: “Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith.”

Kennedy’s key concern is related to the second new development: evidence from a number of universities that race-neutral approaches can produce as much racial and ethnic diversity as using race per se. At the University of Texas, a lower court decision in 1996 banned the university from using race, so it adopted two race-neutral alternatives: a plan to admit students in the top 10 percent of their high school class (irrespective of test scores) and affirmative action for economically disadvantaged students of all races. These two plans produced a class that was 4.5 percent African American and 16.9 percent Latino in 2004, compared with a class that was 4.1 percent African American and 14.5 percent Latino in 1996, when race was last used. For Kennedy, Texas’s subsequent reintroduction of race in admissions is likely to be seen as unnecessary and therefore illegal.

More broadly, in an analysis of leading public universities where the use of race was dropped, my colleague Halley Potter and I found that in 7 of 10 cases, the use of race-neutral alternatives such as class-based affirmative action produced as much black and Latino representation as had the previous use of race.

Looking forward, the U.S. Supreme Court could take one of three paths: (1) keep Grutter in place and support the continued use of race; (2) overturn Grutter and declare the use of race illegal across the board, or (3) strictly enforce Grutter’s requirement that universities try race-neutral alternatives and only use race as a very last resort.

My expectation, based on Kennedy’s pivotal role, is that the court will go for option 3. On the surface, this might look like a “minor” limitation, applying only to universities that have Texas-type race-neutral alternatives already in place. But that is a mistaken interpretation. The principle requiring universities to vigorously pursue alternatives to racial preferences before using race would apply across the board. And in practice, such a rule would revolutionize the way universities admit students. 

Several studies find that universities now employ very large racial preferences (for example, increasing a student’s chances of admissions by 28 percentage points) and provide virtually no preference to low-income students. If the Court instead requires universities to use race-neutral alternatives primarily, and only employ race as a very minor factor to the extent alternatives don’t work, the effect would  be to flip the emphasis so that class counts a great deal and race counts very little, if at all.

Risk-averse lawyers advising admissions offices may in fact suggest that universities only employ race-neutral alternatives. That is what has happened for the most part in K-12 education, where a 2007 decision limiting the ability of school districts to use race in student assignment has seen some 80 districts shift the focus of integration programs from race to class.

In the event that the court severely restricts the ability of colleges to employ race, the Inside Higher Ed presidents’ poll suggest class-based alternatives are about three times as popular as Texas-style percentage plans (which are hard to apply to universities with national applicant pools.) If the right of colleges to employ race and ethnicity in admissions is scaled back, 11 percent of presidents agreed or strongly agreed they would drop standardized tests and 14 percent said they would adopt a policy to admit a top percentage of students from every high school in their state.

By contrast, enthusiasm for class-based affirmative action was stronger: 39 percent said they agreed or strongly agreed that they would place more consideration on applicants’ socioeconomic status; 42 percent would place more consideration on first generation status, and 43% would spend more on financial aid.  Evidence from states where affirmative action has already been banned suggests the percentages of universities that switch to class will be even higher.

Interestingly, then, a conservative Supreme Court decision requiring universities to pull back on racial preferences could pave the way for a more liberal set of policies: greater consideration of class in admissions, and the financial aid to back it up.

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action and the coauthor (with Halley Potter) of A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences.


Harvard Law Review to consider gender in editor selection process

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With only 9 women among 44 editors, the Harvard Law Review expands its affirmative action policy to include gender.


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