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 She has since been replaced by the much more conservative justice, Samuel Alito; Justice Anthony Kennedy, who dissented in Grutter, is the new swing justice.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.
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