Why the Supreme Court got Affirmative Action right

(and what the pundits missed)

Legal experts are stunned by the ruling that colleges must exhaust all other options for diversity before using race. They shouldn’t be.

If you followed news coverage leading up the Fisher v. Texas case decided Monday by the US Supreme Court, you may well have concluded that the Court was on the verge of ending affirmative action in higher education, forever.

MSNBC’s “The Cycle” co-host Touré said in November that if the court ruled against affirmative action, “the entire leadership of America would become entirely white.”

Even the man who led the 2003 Supreme Court case that upheld race-conscious admissions at the University of Michigan wanted you to believe that, if the present Court had overturned that precedent, it would have meant the end of racial diversity in higher education.

“It is too easy to think that striving for racial and ethnic diversity is such a powerful part of our culture that surely it will continue. But if the Supreme Court were to declare it unconstitutional, then it will not, and should not, continue,” Lee Bollinger, now President of Columbia University, told Columbia Magazine last year.

So it must have surprised Bollinger when the Court threw a curveball this week announcing it would send the case back to a lower court to determine if the University of Texas had considered race only after exhausting all its other options for diversifying the college.

Those familiar with the rich case history on affirmative action in America shouldn’t be surprised: there was no logical reason to believe that the affirmative action debate was anywhere near over. This is an issue that has gripped US courtrooms for decades, and Supreme Court itself has taken up affirmative action eight times in the past 35, years, half of the cases involving educational institutions. In fact, another affirmative action case is already on the way: A circuit court of appeals ruled that the state of Michigan’s 2006 ban on affirmative action is unconstitutional, and the Supreme Court has already agreed to hear that case.

NPR legal affairs correspondent Nina Totenberg joined others this week in labeling the Fisher decision a ‘compromise’ between the conservative and liberal justices. But the decision is not really a ‘compromise’ so much as it is a recognition that there are many other, often better ways universities can diversify their student bodies than by considering race. In fact, universities have already developed a myriad of strategies to circumvent the ‘affirmative action’ issue altogether, and they are using them to great success.

The cased decided this week involved a white college applicant in Texas, Abigail Noel Fisher, who says she was denied admission to the college of her dreams because of the color of her skin. Her lawyers say the University of Texas-Austin should not be allowed to consider race as one of many factors in how it chooses to compose approximately 25 percent of its freshman class each year.

But more telling is what Fisher’s lawyers weren’t challenging: The system by which the remaining 75 percent of UT-Austin students get picked. Since 1996, Texas law has required that all state-funded universities automatically admit students who place in the top ten percent of their graduating class. That means a student in a predominantly low income or minority high school can be admitted even if her peer from a wealthier or mostly-white high school scored better on standardized tests or received higher grades.

In a state like Texas, which places among the three worst in the nation for racial segregation in its public schools, it means thousands more minority students are being admitted to state colleges. California and Florida have implemented similar ‘percentage’ plans. No race necessary.

Still other universities have succeeded in increasing minority students on their campuses using socioeconomic, rather than racial, distinctions. In one admissions program at UCLA Law School, officers consider students’ personal wealth and whether or not they were raised in a single parent family (in 2010, 66 percent of black children in the United States were raised in single-parent families compared with 24 percent of white children). As a result, black applicants were 11 times as likely to be admitted through that process as they were when these factors were not considered, according to a study by Century Foundation researcher Richard Kahlenberg.

Long history of discriminate selection

For as long as colleges have existed, certain populations have been limited or even barred from enrolling altogether. In fact, the very notion of holistic admissions was conceived not to admit underrepresented applicants, but to exclude overrepresented ones.

In the 1920s, administrators at Harvard, Yale and Princeton instituted quotas to limit the number of Jews admitted to their schools, which was spiraling to one-fifth of the student body in some elite universities. They decided to institute interviews and personal essays to the admissions process to make it easier to identify and exclude Jews. Then, they added “character” to the definition of merit to justify admitting applicants who are less academically qualified but who come from more desirable (non-Jewish) backgrounds. As late as the 1980s, at least one admissions officer at Harvard was still considering physical characteristics of applicants during in-person interviews, having written that one hopeful was “short with big ears,” according to research by the journalist Malcom Gladwell.

Of course, Jews are not only population that’s been limited. Until only three generations ago, nearly all blacks were effectively barred from a higher education altogether because school segregation made their primary and secondary education so pitiful they never had a chance. When the US Supreme Court ruled in its 1954 Brown v. Board of Education decision that segregated schools violate the 14th amendment’s equal protection clause, it opened the way for blacks to compete against whites for admission to universities– in theory (blacks remain far more likely to attend under-achieving schools throughout the country).

Today, approximately 70 percent of young Americans will not go on to attend a four-year college. Meanwhile, varsity athletes who score 220 points lower on the 1600-point SAT than their college-bound peers will. That’s because we accept that there’s something worthwhile about having athletes around, even if many are less academically prepared than their classmates. (Of course the fact that winning sports teams are an image boost and may have something to do with it). What’s more, many elite universities still give legacy preference to students who have no special qualification at all except that one of their parents or grandparents attended the school.

If athletes and legacies can find their way into top American colleges despite having lower test scores, goes the argument, why not blacks and Hispanics, whose presence in a diverse student body is at least as important?

Race-conscious admissions work

Fisher’s lawyers argue that UT-Austin’s automatic admission of seniors in the top 10 percent of their has been effective enough in increasing racial diversity that no further race considerations should be made for the remaining 25 percent of the class. Are they right?

Having recently studied nine states where universities are prohibited from considering race, Kahlenberg found that race-blind admissions procedures have diversified student bodies as well as or better than procedures that consider race.

Still, these programs don’t work as well at highly selective universities, or even some moderately selective schools like Texas, which admitted 44 percent of applicants last year. A look at admissions data from UT-Austin shows this race-blind policy has indeed increased the percentage of minority students at the school—just not as effectively as when it considered race.

During the decade after UT-Austin began the automatic admissions, minority enrollment increased from 35 percent of the incoming class in 1995 to 40 percent in 2004. But in the eight years since the university began considering race for non-automatic enrollments, the proportion of minorities increased by another 6 percentage points to 46 percent where it stands today. That increase is even more striking because race was still only considered at all for approximately 25 percent of the available spots.

While UT-Austin administrators argue this system is a fair and necessary way of diversifying the student body, critics like Fisher say universities have gone too far, such that it is now significantly easier for a black or Hispanic student to get into a selective college than it is for a white or Asian student.

“Black applicants have an admission advantage compared with whites equivalent to 310 SAT points (on the old 1,600-point scale), while the advantage for Hispanic candidates is 130 points,” according to a 2009 study by Princeton professor Thomas Espenshade and his colleague Alexandria Walton that looked at admissions at eight elite schools. “Asian-American applicants face a disadvantage of 140 SAT points. This means that Asian students have to score 450 points higher than otherwise similar black applicants to have the same chance of being admitted.”

To be sure, the debate over affirmative is far from over, despite just about every pundit and many journalists claiming this week’s ruling would mark a definitive end to the practice. But to the credit of the Supreme Court, its ruling in Fisher this week will force colleges to pay more attention to the myriad of other ways to diversify their student bodies, many of them even more effective than considering race. Without using affirmative action at all, colleges “can try to manufacture diversity by giving more weight in admissions to those factors that are sometimes close substitutes for race — for example, having overcome disadvantage in a poor urban neighborhood,” wrote Epenshade in 2009. “Or they can take a far bolder step: putting their endowments and influence behind a comprehensive effort to close the learning gap that starts at birth.”

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