Goodbye, Affirmative Action?


On October 10, the Supreme Court heard arguments in a case that could spell the end of affirmative action at U.S. universities. Fisher v. University of Texas is a case brought by Abigail Fisher, a white student whose 2008 university application was rejected, she claims, because of her race.

Depending on how the court rules on Fisher next year, the complexion of college campuses could drastically change, particularly at the most competitive schools. Because Title VI of the Civil Rights Act requires all institutions receiving federal funds (which most schools do in the form of student loans and grants) to comply with the equal protection clause of the 14th Amendment, private as well as public universities would feel the effects. It’s one reason why both Columbia University and Fordham University have filed friend-of-the-court briefs in support of race-based affirmative action.

“A decision overruling affirmative action would be disastrous,” says Michael Olivas, the director of the Institute for Higher Education Law and Governance at the University of Houston. “There is simply no substitute for race.”

Yet schools will push for a diverse student body, even if the use of racial preferences is outlawed. Many observers predict that if race is outlawed as a factor in admissions, it will give way to a proxy: economic class.

Fisher is just the latest in a long series of court cases attempting to determine where to draw the line on race as a consideration for admission to colleges and universities. The Supreme Court’s last major affirmative action ruling, in the 2003 case Grutter v. Bollinger, allowed the continued use of race as one factor in admissions decisions for the purpose of creating diversity.

At the University of Texas, where Fisher was denied admission, race only plays a small direct role in admissions. In 1998, the university instituted a race-neutral “10 percent” plan that fills about 70 percent of its admissions slots. Under the plan, high school students who graduate in the top 10 percent of their class are guaranteed admission to any public university in the state. Because high schools in Texas remain largely segregated, this method has proved effective in ensuring that nonwhite students still have a shot at state universities: UT now ranks sixth in the nation in granting undergraduate degrees to students of color.

For the remaining applicants, UT does a full file review, which includes looking at high school grades, SAT scores, performance on a test that the university administers, recommendations, high school classes taken, quality of high school attended—and, yes, race.

Fisher’s lawyers say she does not object to the 10 percent rule. But the Supreme Court is free to strike down any part of UT’s admission policy, from the 10 percent rule, which is peculiar to UT, to the use of affirmative action altogether.

“The court doesn’t often take cases that are idiosyncratic, so you begin to wonder whether some justices may want to reconsider the basic principle set down in Grutter v. Bollinger,” says Lee Bollinger, the president of Columbia University and the defendant in the 2003 case when he was president of the University of Michigan. “That would be a tragedy, and I and others hope that won’t happen.”

In its friend-of-the-court brief, the University of California presents itself as a cautionary tale of the possible effects of outlawing affirmative action. California ordered its universities to stop using race in admissions in 1996; since then, the percentage of first-year students at UC Berkeley who are African American has fallen from 7.3 percent to 3.5 percent, and at UCLA from 6.7 percent to 3.8 percent. UC says in its brief that none of its alternative efforts—outreach programs, putting less weight on SAT scores, instituting a percentage program, even considering an applicant’s life circumstances and family income—have worked.

Bollinger predicts the same will happen to private universities if the Supreme Court strikes down affirmative action. “You will end up with student bodies that look much as they did at any university in the 1960s or ’70s,” he says.

Deborah Archer, associate dean of academic affairs at New York Law School, sees firsthand the need for classroom diversity. She teaches courses on civil rights and racial discrimination. “If I have a class of 18 white students, one black student, and one Latino, my class can’t have a helpful discussion,” she says. “What happens is that one black student becomes the spokesperson for the whole race. Students leave thinking that’s what all black people think. There has to be a diversity of perspectives in order to have a rich class discussion.”

While Bollinger and Archer paint a dire picture of a future without affirmative action, Richard Kahlenberg, a senior fellow at the Century Foundation think tank, holds out hope for economics-based affirmative action. “Universities have put into place a new system,” he says. “They don’t directly provide a preference based on race, but they are making admissions decisions with an eye to the end result of creating racial and economic diversity.”

Kahlenberg argues that economically disadvantaged students deserve a leg up in admissions, but they aren’t getting any extra help. He points to a study by the Century Foundation and Georgetown University that found socioeconomic obstacles outweigh those of race on SAT performance. And yet as a study by former Princeton president William Bowen has found, black, Latino, and Native American students get a 28 percent boost in admissions over what would otherwise be expected given their academic records, while low-income students receive none.

Under affirmative action, Kahlenberg says, “universities assemble classes with fairly wealthy students of all races. As long as universities are allowed to use race in admissions, they are unlikely to pay attention to socioeconomic status. Rather than use race as a proxy for disadvantage, a fair system would give the preference based on disadvantage itself. This way, we add economic diversity alongside racial and ethnic diversity.”

Kahlenberg co-authored a new Century Foundation report that shows economics-based affirmative action has created diverse campuses at schools where the outlawing of racial preferences initially produced a drop in minority enrollment. UT Austin, University of Washington, and University of Florida, among others, looked at parental income, personal hardship, family responsibilities, status as a first-generation college student, and average SAT score at the applicant’s high school. This focus on economic factors has produced at least as much racial and ethnic diversity as racial preferences had in the past.

Richer universities such as Columbia are in the best position to put economics-based affirmative action to work, says Kahlenberg, since they can provide financial aid for students who need it. Yet they have preferred race-based plans, which skew toward admitting more higher-scoring middle- and upper-class students of color: 86 percent of all African-American students admitted to the most selective universities, a subset of whom get in without affirmative action, are from middle- to upper-class families.

In fact, according to Bollinger, Columbia reviews all applications for many factors, including socioeconomics and race. But he warns that looking at socioeconomics alone will not result in a diverse class: “Most people who are from lower socioeconomic standing in the society are white, and if you look only at socioeconomic status of the family, then you will more likely admit a white student than an African-American, Hispanic, or Native American student.”

“If your goal is racial representation, then using race is far more efficient,” Kahlenberg says. “My argument is that we should be concerned about economic diversity as well, but universities would have to admit some low-income white and Asian students along the way, and that’s not something they’re interested in doing.”

One program that could serve as a model for economics-based affirmative action is New York state’s Educational Opportunity Program, which was established in 1967. EOP admits and provides support for economically disadvantaged students who show potential but who do not have all the credentials for admittance to a particular university.

Stony Brook University EOP Director Cheryl Hamilton defines potential as a student who, despite disadvantages, shows the desire to succeed academically. Some EOP students, for example, graduate at the top of their class, but their high schools are under-resourced and might not have provided college-prep work. Hamilton attributes the program’s success (its six-year graduation rate is 78 percent) to a structured tutor program and intensive academic counseling that focuses on the unique needs of every student.

Race is not a factor in being admitted to EOP, and yet the program creates diversity because it takes the same approach in reviewing applicants that Kahlenberg advocates. The program looks at extenuating circumstances in the lives of its applicants, including their economic status, whether they attended an under-resourced school, or had to work to support themselves or even their families. (Columbia offers the Higher Education Opportunity Program, the private school version of the program.)

“EOP is open to students [of all races],” explains David L. Ferguson, associate provost for diversity and inclusion at Stony Brook. “However, these programs have a mission to increase the representation of economically disadvantaged and underrepresented students.”

Although Stony Brook does not use affirmative action in admissions decisions, Ferguson does believe that race should be considered to foster an environment in which students can examine many different perspectives. “A diversity of people and ideas strikes me as what universities ought to be about,” he says. “There are historical patterns of discrimination that have been so egregious that colleges and universities have a responsibility to consider that history in admitting and supporting students.”

There is an effort to counter the diversity argument, and Roger Clegg is at the forefront. He’s president of the Center for Equal Opportunity, a conservative think tank that focuses on issues of race and ethnicity, in Falls Church, Virginia. Clegg argues that diversity doesn’t justify discrimination—especially because, in his view, the educational benefits of diversity are little while the costs, which he says include divisiveness and resentment, are high.

“It’s simply untenable to have a legal regime that sorts people according to skin color and treats some people better and other people worse on the basis of which silly little box they check,” Clegg says. “More and more it’s Asians who are being discriminated against in favor of Latinos. What’s the historical justification for that?”

Robert Teranishi, a professor of higher education at New York University and the author of Asians in the Ivory Tower: Dilemmas of Racial Inequality in American Education, says this is an oversimplification. “It’s not like universities say we’re going to reject student A so we can admit student B,” Teranishi says. “It doesn’t work that way. Race is just one factor among many that colleges have to take into account. In fact, legacy admits [students given preference for admission to a university because a family member is an alumnus] can be a large portion of incoming students at highly selective schools, and rarely do legacy admits include Asian Americans, blacks, or Latinos.”

Eliminating affirmative action forces universities to be more resourceful in getting the students they want. In fact, a few of the universities Kahlenberg studied—UC, Texas A&M, and the University of Georgia—discontinued legacy preferences along with racial preferences. Kahlenberg says that was a positive effect of the ban on race-conscious admissions and that more universities should do the same.

Still, the most qualified minority candidates admitted to the top schools via affirmative action would be most impacted.

If affirmative action is struck down, Orfield worries, and class-based affirmative action becomes the rule, it will be these middle- and upper-class students admitted to top universities under the policy who will lose.

“The top schools in this country produce a disproportionate number of our leaders,” Orfield says. “Where you go to school matters a lot.”