After almost a half century, American higher education's use of racial preferences in admissions to selective colleges may well be coming to an end. On October 10, the U.S. Supreme Court will hold oral arguments in the case of Fisher v. University of Texas at Austin, and many legal observers expect the court to curtail, or even eliminate, the ability of public and private colleges and universities to employ racial and ethnic preferences in admissions. Institutions are fighting valiantly to preserve the ability to employ racial affirmative action, flooding the court with amicus briefs. But given critical shifts in the makeup of the justices since a 2003 decision narrowly supported affirmative action at the University of Michigan, a new approach will probably be needed.
The good news for people concerned about racial and economic justice is that in several states that have banned racial affirmative action by voter referendum or executive order, legislators and college officials have not given up on pursuing diversity. To the contrary, they have invented new systems of affirmative action that in many respects are superior to the ones being replaced since they are attentive to both economic and racial diversity.
Seven states, with more than one-quarter of American high-school students, have abandoned racial and ethnic preferences at state colleges and universities; in two additional states, leading institutions have dropped race from admissions decisions. But as I outline in a new report for the Century Foundation, "A Better Affirmative Action," in almost all places where colleges have been barred from using racial preferences, they have adopted creative approaches for promoting diversity.
Six states have spent money to create new partnerships with disadvantaged schools to improve the pipeline of low-income and minority students. Seven states have provided new admissions preferences to low-income and working-class students of all races. Eight have expanded financial-aid budgets to support the needs of economically disadvantaged students. In three states, individual universities have dropped legacy preferences for the generally privileged—and disproportionately white—children of alumni. In three states, colleges created policies to admit students who graduated at the top of their high-school classes, thereby granting access to students from low-income schools that had little history of sending graduates to selective colleges when racial affirmative action was in place.
How much racial and ethnic diversity was produced by these plans and by changing demographics in the state populations? We examined 10 leading universities in eight states for which data were available and found that in seven of 10 cases—Texas A&M University at College Station, the University of Arizona, the University of Florida, the University of Georgia, the University of Nebraska at Lincoln, the University of Texas at Austin, and the University of Washington—the proportion of African-American and Latino students met or exceeded the proportion achieved in the past using racial preferences.
The three exceptions—the University of California's Berkeley and Los Angeles campuses and the University of Michigan at Ann Arbor—draw more heavily upon a national pool of applicants and thus had to compete on an unfair playing field against competitors that were free to provide racial preference in admissions. If the Supreme Court were to curtail affirmative-action policies at colleges nationwide, it is likely that Berkeley, UCLA, and Michigan would have an easier time of encouraging talented minority students to apply and enroll than they do today.
Nonracial affirmative-action programs have been unfairly attacked on several grounds. Some people call them disingenuous; others say they deny the reality of racism. Alternatives to affirmative action are said to promote unqualified students and to be vulnerable to the same legal attacks as race-based programs. And some people ask: Why not promote affirmative action on the basis of both race and class?
Some people suggest that if we want racial diversity, we should just be honest and use race explicitly rather than indirectly, but there are significant moral and political costs to allocating admissions chances by race, which is why the Supreme Court, and the American public, generally disfavor its explicit use. Where racial diversity can be achieved without racial preferences, it should be.
Likewise, although it is routinely argued that racial preferences need to be in place as long as discrimination occurs, the courts have never allowed racial preference as a means of counteracting continuing societal discrimination and instead hold that the appropriate remedy to racial discrimination is punishment under civil-rights statutes. Moreover, using the right set of economic criteria in class-based affirmative-action programs can help counteract past and current instances of racial discrimination.
For example, the nation's steep wealth inequality reflects in some important measure the legacy of slavery and segregation as well as present-day housing discrimination. Smartly structured economic affirmative-action programs can count wealth as an admissions factor, thereby acknowledging discrimination indirectly without conflicting with our legal system and public perceptions of fairness.
Although some people suggest that admitting more low-income students will harm academic standards, Anthony Carnevale and Stephen Rose of Georgetown University have found that selective universities could, through a merit-based system that also considers socioeconomic disadvantage, boost the representation of students from the bottom socioeconomic half from today's 10 percent to 38 percent, with graduation rates remaining the same as under our current system of admissions that includes various preferences for minority students, athletes, and children of alumni. So, too, research by Sunny X. Niu and Marta Tienda of Princeton University rendered unfounded the concern that the "top-10-percent plan" in Texas would admit ill-prepared students who would perform poorly.
Some critics worry that if the Supreme Court strikes down race-based affirmative action today, it will strike down race-neutral alternatives tomorrow. In fact, socioeconomic classifications are subject to a far different level of judicial review than racial classifications. Indeed, the most conservative U.S. Supreme Court justices, Antonin Scalia and Clarence Thomas, have explicitly endorsed class-based affirmative-action programs.
Finally, while many people suggest that colleges should give admissions preferences on the basis of race and class, real-world experience suggests that socioeconomic and race-based affirmative action rarely coexist in practice. Indeed, in a 2005 study of highly selective institutions, William Bowen and colleagues found that being an underrepresented minority increased one's chance of admission by 27.7 percentage points, but being in the bottom income quartile (relative to the middle quarters) had no positive effect. So too, in a 2004 study of the nation's most selective 146 institutions, Carnevale and Rose found that race-based affirmative action tripled the representation of blacks and Hispanics but that universities did virtually nothing to boost socioeconomic representation per se.
Rich students were found by the authors to outnumber poor students on the nation's selective campuses by 25 to one, and more recent research suggests the situation has changed little in intervening years despite rhetoric to the contrary. By contrast, when universities are barred from using race, they ramp up consideration of socioeconomic status not because they suddenly care about economic diversity but as an indirect way of boosting diversity by race.
Producing racial and ethnic diversity without using the criteria of race is hard work and far less "efficient" than simply providing an admissions preference based on skin color. But experience in a number of states suggests that a Supreme Court decision curtailing the use of race could promote a better form of affirmative action that is cognizant of racial and ethnic diversity outcomes, and begins to correct, at long last, deeper issues of class inequality in higher education.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action (Basic Books, 1996), and the editor of Rewarding Strivers: Helping Low-Income Students Succeed in College (Century Foundation Press, 2010).