Affirmative Action Gets a Hearing

The U.S. Supreme Court is expected to draw a crowd October 10 when it considers affirmative action for the first time since 2003. (Getty)

Abigail Fisher was one of the more than 17,000 high-school seniors from around the country who were rejected when they applied to the University of Texas in 2008. In an argument to be heard next week by the U.S. Supreme Court, Fisher argues the university turned her down because she is white.

If the Supreme Court agrees with Fisher, it could spell the end to affirmative action programs across the country that provide some advantage to applicants from underrepresented minorities. At issue is whether Fisher's “equal protection” under the 14th amendment was violated by the university's consideration of the race of some of its applicants. Courts so far have found that it wasn't, as both the 5th Circuit district and appeals courts ruled in favor of the University of Texas.

The majority of students at Texas's flagship university got in through the state's top 10 percent plan, under which students are automatically admitted, irrespective of race, if they graduate in the top 10 percent of their high school class. The policy has diversified the university because many Texas high schools are mostly black or Hispanic, but the university says that relying solely on high school academic rank is too restrictive.    

 “The students who are not automatically admitted bring tremendous talents, they can be somebody who's student body president, stumbled a little bit academically sophomore year, but won the state math contest.” says Bill Powers, the university's president. “We want that group of students to be ethnically diverse, as well.”  

Fisher, from a wealthy Houston suburb, did not rank in the top tenth of her class but sought admission through the university's “holistic review” process, which considers academic and personal characteristics, one of which is race, in determining admissions for the rest of the class.

Changes to the Court

The Supreme Court last ruled on affirmative action in 2003.  In Grutter v. Bollinger, the court upheld the admissions policies of the University of Michigan Law School, approved “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

The opinion in that case was authored by retired Justice Sandra Day O'Connor, who was replaced by the more conservative Samuel Alito in 2006. The U.S. government, more than 100 colleges and other higher education organizations, and 15 states filed briefs in support of the University of Texas and its affirmative action policy. But the court's conservative shift since O'Connor's departure has led many observers to conclude that it intends to limit the racial preferences allowed by the Grutter ruling.

“Whatever the court does, all eyes of higher education will be upon it,” says Ada Meloy, the American Council on Education's general counsel. Her organization filed a brief supporting the University of Texas, arguing that “[a] diverse student body is essential to the educational objectives of colleges and universities.”

But Fisher's backers argue that the court went too far in its 2003 ruling.

“The Grutter case doesn't fit in with the rest of the court's equal protection jurisdiction very clearly,” says Gail Heriot, a law professor at the University of San Diego, and member of the U.S. Commission on Civil Rights, who filed a brief supporting Fisher. “Every time the Supreme Court decides a case permitting a state to engage in racial discrimination it makes it that much easier to do it the next time.”

State Actions

Some states are backing Texas. New York leads a coalition of 14 states that have filed a joint brief arguing that the Supreme Court should uphold the ruling of the appeals court, in favor of the University of Texas, because it “respects the traditional role of States in developing differing solutions to difficult and important problems.”

But other states have banned affirmative action without being compelled to by the courts. New Hampshire legislators passed a law last year banning affirmative action in admissions and hiring decisions at state colleges and agencies, and Oklahoma voters will decide this fall whether to ban affirmative action there. Surprisingly, the affirmative action bans haven't led to less diversity in those states' public universities, according to a report released this week by the progressive Century Foundation.

“The good news for those of us who care about racial and economic justice is that in the states where universities have been banned from using race, they have not given up on diversity,” says the report's author, Richard Kahlenberg.

To maintain their diversity without race-based affirmative action, those states have given advantages to students from lower socioeconomic backgrounds, abandoned legacy preferences and established partnerships with high schools serving low-income and minority students. Kahlenberg says that Texas was one of the most successful states in achieving this.

Seven years before the Grutter decision, Texas was banned from using race in admissions by a federal court ruling. The university modified its admissions policies to include preference for applicants from lower socioeconomic levels and state lawmakers developed the top 10 percent plan. The day the Grutter decision was delivered, the university announced that it would reintroduce race into admissions through its holistic process, but by then the combined black and Hispanic enrollment already exceeded what it had been before the ban.

Last year, black and Hispanic students accounted for 35 percent of students admitted to the university under the top 10 percent plan, now scaled back to the top 8 percent to allow the university some discretion in picking up to 25 percent of its class, and for 29 percent of all enrolled freshmen, more than 50 percent higher than pre-ban levels. The university argues in its brief that its plan has been successful because of the “de facto segregation throughout much of Texas's secondary schools.” Hispanics are also the fastest growing group in Texas and now account for 38 percent of the population, according to the U.S. Census, meaning that continued growth in Hispanic enrollment is likely inevitable.

The black and Hispanic students admitted through the holistic review, which takes race into account, accounted for less than 5 percent of the freshmen class last year, but the University of Texas argues that its essential to include those students, in part because they are more likely to have attended integrated high schools, are often wealthier and tend to have higher SAT scores, creating diversity within the school's minority populations.

Elite Colleges and ‘Mismatch'

Despite the Century Report findings, affirmative-action backers fear that without at least some racial preferences, states with smaller minority populations than Texas would have a difficult time achieving diversity. They also fear that even in states with diverse populations, a ban on all racial preferences could lead to smaller minority enrollment at elite universities. The Century Foundation study highlights three state schools where an end to affirmative action did lead to reduced minority enrollment: the University of California at Berkeley, the University of California at Los Angeles and the University of Michigan. Those schools are ranked among the best state universities, and attract large numbers of out-of-state applicants.

Some affirmative action opponents counter racial preferences harm minority students more than they help them. Stuart Taylor is co-author, with UCLA law professor Richard Sander, of a forthcoming book titled “Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It.” Taylor says that students admitted to schools for which they are not academically qualified, whether it be for racial preference or alumni preference, are more likely to struggle and choose easier majors to survive academically. The problem is most acute among black students, he says.

“Blacks express an interest in sciences at higher rates than whites do,” he says, “but they bail out of science majors in droves.”

Nevertheless Taylor, who has written extensively about the Supreme Court, says he doesn't support an outright ban on racial preferences, particularly in the short run, because of concerns about declined minority enrollment at the most elite universities, which he says still confer some advantages on minority students despite the potential for mismatch.

Still, he thinks that universities need to be more transparent about their admissions policies. He also wants them to more rigorously explore race-neutral alternatives to increasing diversity, and to conceive of an endpoint for using racial preferences, as the Grutter decision anticipated.

“We expect that 25 years from now,” O'Connor wrote in concluding the 2003 opinion, “the use of racial preferences will no longer be necessary to further the interest approved today.”

If the University of Texas plan is upheld, Taylor believes it will take a lot longer than that. “I think we will still have affirmative action for the next 100 years,” he says.

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