With the U.S. Supreme Court set to rehear the Fisher v. University of Texas at Austin case challenging affirmative action in the coming term, the results of an important new survey released Tuesday by the American Council on Education may unwittingly undercut the arguments of supporters of race-conscious admissions.
Among other things, the report documents how college officials reacted to the original Fisher decision in 2013. In short, colleges didn’t take the ruling very seriously. The headline finding is that "when asked directly whether the Fisher ruling affected their admissions or enrollment management practices, only 13 percent of institutions responded in the affirmative."
This new information is deeply problematic for supporters of affirmative action because the nonchalant response to the earlier Fisher decision may well embolden conservative justices — including swing vote Anthony Kennedy — to make a more definitive statement about racial preferences in the Fisher II case.
By way of background, in 2013 the Supreme Court ruled 7 to 1 that colleges could pursue racial diversity but imposed on them "the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice." The opinion suggested that colleges would receive "no deference" on this question, a substantial departure from a 2003 ruling in Grutter v. Bollinger that supported racial preferences at the University of Michigan Law School.
The Fisher case was meant to send a strong signal to colleges: It was time to change the way of doing business. Rather than simply counting race in admissions, colleges would first have to show that alternatives — such as giving a boost to economically disadvantaged students of all races, or admitting all high-school students in the top of their high-school classes — wouldn’t work.
After issuing the Fisher ruling, the Supreme Court remanded the case to the Fifth Circuit to apply the new standard. To the surprise of many, the lower court approved the university’s use of racial preferences even though its top-10-percent plan — providing automatic admission to students with the highest GPAs in each high school — produced as much racial and ethnic diversity as using race had in the past. When the Supreme Court took the case back on appeal last month, many read this as suggesting that the high court wants to make clear it means business.
For that reason, the ACE report, finding that almost 90 percent of colleges are making no changes to admission after Fisher will very likely give fodder to those seeking a more emphatic statement against racial preferences in Fisher II.
Another key finding in the report may give the justices — especially Anthony Kennedy — reason to come down hard on racial preferences. Kennedy likes racial diversity but doesn’t like using racial preferences to get there, so it’s significant that ACE finds that in several states where affirmative action has been banned (often by voter referendum), new strategies have been devised. The report notes: "The 19 institutions in our study that discontinued the consideration of race subsequently poured their energies into alternative diversity strategies." For example, after bans were imposed, 53 percent increased consideration of overcoming adversity, and 42 percent increased emphasis on socioeconomic disadvantage. Other colleges eliminated legacy preferences, which tend to benefit white and wealthy students.
As Kedra Ishop, an admissions official at the University of Michigan, noted in the report, "Diversity doesn’t become less important because the court limits how we can achieve it."
The study finds that some colleges (including minority-serving institutions) report never having used race in admissions and that many of these same institutions don’t use socioeconomic status either. These findings, the authors suggest, "cast doubt" on an argument I have advanced that when racial affirmative action is taken away, colleges often switch to socioeconomic affirmative action. But I’ve never argued that colleges that have failed from the beginning to show a commitment to racial diversity will turn to class as an alternative. If colleges never cared from the first instance about racial or socioeconomic diversity, why would a ban on racial preferences affect them one way or another?
The authors also take a gratuitous slap at Texas’ 10-percent plan. "Campus racial diversity as an outcome of the Texas plan depends to some extent on racial segregation in Texas public schools — an inequitable and troubling scenario on which to base admissions policy." But why should it be troubling that the Texas plan ingeniously raises up those students who have been the unfortunate victims of school segregation? As Sheryll Cashin argues in Place, Not Race, those students are far more deserving of special consideration than minority students who have attended affluent schools.
The ACE report, titled "Race, Class, and College Access: Achieving Diversity in a Shifting Legal Landscape," does offer some important insights into ways that colleges can employ race-neutral strategies and reports on which methods colleges find most useful. In the survey of 338 nonprofit four-year institutions, for example, 78 percent use targeted recruitment of minority students at the application stage. Moreover, once students are admitted, 72 percent of institutions reported that an "effective" technique involves "targeted yield recruitment initiatives (e.g. visit days for admitted students, receptions in students’ hometowns, calls from faculty) to encourage admitted minority students to enroll." These are precisely the types of activities that Justice Kennedy will probably encourage colleges to employ before resorting to racial preferences in admissions.
Of course, the most important indicator of commitment to race-neutral strategies is not whether colleges check a list for having a program, but whether such programs are pursued diligently. A university may allow transfers from community colleges as an indirect way of promoting diversity, for instance, but it matters whether a substantial portion of students are admitted through this avenue, or just a handful. A college may claim that low-income students receive an admissions boost, but what if careful analysis finds that the boost to underrepresented minorities dwarfs any preference for socioeconomic status, as some research has found at selective colleges? So long as rich kids outnumber poor kids by 14 to one at selective institutions, it seems clear that colleges could do much more to pursue socioeconomic diversity as a race-neutral strategy for boosting racial diversity.
ACE’s report declares a commitment to race-conscious affirmative-action programs — but the study’s findings may in fact hasten the day that colleges must pursue racial diversity by other means.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, is editor of The Future of Affirmative Action: New Paths to Higher Education Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).