On Thursday the U.S. Supreme Court is scheduled to decide in a private conference whether to accept an appeal from Abigail Noel Fisher in the Fisher v. University of Texas litigation challenging UT-Austin’s affirmative-action policies. If the court takes the case for review, as I think it should, that would be a big victory for poor and working-class students hoping to attend selective colleges and for those who believe racial considerations should not be a factor in deciding who gets ahead in society.
In the original 2013 case, the Supreme Court suggested that promoting the educational benefits of racial and ethnic diversity on campus is a compelling purpose. But, where possible, the justices said, universities should find race-neutral means of doing so. This compromise is consistent with where the public is: Americans want racial diversity in colleges and universities but dislike the use of racial preferences to get there.
Instead, a majority of people believe in using alternatives to race when feasible — policies like providing a leg up to economically disadvantaged students, boosting financial aid, increasing transfers from community colleges, ending legacy preferences, and reducing an emphasis on tests in favor of students in the top portion of a state’s high schools.
In the Fisher decision, the court said the 14th Amendment of the Constitution placed on universities "the ultimate burden of demonstrating, before turning to racial classifications, that workable race-neutral alternatives do not suffice." The justices then sent the case back to the Fifth Circuit to apply this standard.
On remand, UT-Austin had a tough argument to make. In the face of a lower-court ban on racial preferences, Texas had created a highly effective policy for promoting racial and ethnic diversity, which automatically admitted students in the top 10 percent of every high-school class. The policy, under which three-quarters of students are admitted, capitalized on the unfortunate reality of high-school segregation to produce something positive: higher levels of black and Latino representation than had been achieved in the past using racial preferences.
Research has found that minority students admitted under the top-10-percent plan do well academically at Austin. Moreover, data indicate that the plan promotes socioeconomic diversity as well. In 2013, 21 percent of those admitted under the percentage plan were from families making less than $40,000 a year, compared with just 6 percent of discretionary admits.
Remarkably, UT-Austin tried to turn this benefit into a deficiency. The university suggested that because those admitted through the 10-percent plan were more likely "to be the first in their families to attend college," racial preferences were needed to admit students such as "the African-American or Hispanic child of successful professionals in Dallas" who would defy stereotypes.
In the original Fisher case, Justice Samuel A. Alito Jr. was incredulous during oral argument. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds," he said. But by a 2-1 vote, a panel of the Fifth Circuit bought this strained argument, suggesting essentially that Texas needed to use racial preferences because the 10-percent plan was producing too many minority students from the "wrong" class — those from segregated high schools who would be poor bridge builders with white students.
This argument seems unlikely to persuade the U.S. Supreme Court. In appealing to the high court, lawyers for Abigail Fisher noted that Texas provided no evidence to suggest top 10-percent students did a poor job relating to white students. And as I noted in an amicus brief in the lower-court litigation, affluent minority students are hardly missing on elite campuses. One study found that 86 percent of black students at selective colleges are middle or upper class. Moreover, if the University of Texas wants students who are bridge builders, it doesn’t need to give a blanket preference to privileged minority students and instead could give special consideration to students of all races who demonstrated a history of fostering interracial dialogue.
Letting the Fifth Circuit decision stand would send a dangerous signal to colleges that they can continue to use racial preferences even when alternatives are demonstrably effective. This would be very bad news for poor and working-class students of the type who benefit from alternatives such as class-based affirmative action or percentage plans.
Research by William G. Bowen and others has found that universities give a substantial boost to racial minorities — improving their chances of admissions by 28 percentage points — but provide essentially no preference to low-income students. If the requirement that universities employ workable race-neutral alternatives isn’t enforced, colleges will continue to bring together fairly wealthy students of all colors because it is cheaper to do so.
A 2013 poll of admissions officers found that only 1 percent of public and private institutions were "very likely" to change policies after Fisher. Only 4 percent of public and 8 percent of private institutions were "somewhat likely" to change. If the Supreme Court leaves the Fifth Circuit decision untouched, colleges will gladly continue to avoid larger issues of class and make decisions directly on the basis of race — and poor and working-class students of all races will lose out.
Richard D. Kahlenberg is a senior fellow at the Century Foundation and editor of The Future of Affirmative Action: New Paths to Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).