Waiting on Fisher v. Texas

Advocates and opponents of affirmative action have been eagerly waiting to see whether the U.S. Supreme Court will hear a challenge to the use of race in admissions in the case of Fisher v. Texas. Many observers thought the Court would announce whether it would grant or deny a cert petition in the case last month, but the Court deferred a decision, leaving advocates on both sides hanging. A decision is expected some time after the Court returns from its winter recess next week.

In the meantime, major voices are weighing in on the case. Last month, Columbia University president Lee C. Bollinger published an op-ed in the Washington Post urging the Supreme Court not to take the Fisher case. Soon after, the New York Times editorial board defended the status quo on affirmative action in a lead editorial. Both Bollinger and the Times editorial writers championed the importance of diversity on campus, which most people of good will also value. But their analysis was weaker on the likely stakes of the Fisher challenge and on the current record of universities in promoting all types of student diversity.

The Times editorial, “The Affirmative Action War Goes On,” was subtitled “The parties offer a stark choice – between centrist pragmatism and conservative absolutism.” The editorial suggested, “Leaders of universities, corporations and other institutions fear that the conservative majority will overrule Grutter v. Bollinger, the 2003 case that upheld the right of a public law school to consider race in admission to achieve the benefits of a diverse student body.” The Times warned that “conservative justices” would try to “eliminate efforts to ensure diversity on campus.”

If the Court takes the Fisher case, however, the new swing justice on the Supreme Court, Anthony Kennedy, will probably balk at overturning Grutter outright. Instead, if his opinion in the 2007 Parents Involved v. Seattle school-integration case is a guide, he is more likely to suggest that universities be pressed very hard to come up with race-neutral alternatives to affirmative action before resorting to the use of race, a requirement that is technically part of the Grutter decision but was not enforced very vigorously by the Grutter court.

The Fisher case is tailor made for such a ruling. At the University of Texas at Austin, two race-neutral mechanisms–admitting students in the top 10 percent of their high-school class, and giving a preference to students from economically disadvantaged families and schools–did produce sizeable racial diversity, and Kennedy may require universities to utilize these types of programs before employing racial preferences. (Texas’s subsequent decision to add race as an additional criterion provoked the litigation from a white plaintiff, Abigail Fisher.)

Bollinger’s op-ed in the Washington Post, “College diversity at risk,” dismissed the idea that universities should focus “on family income rather than racial diversity,” replying, “Of course, we want both.” But while many universities have taken steps to ensure the admirable goal of racial diversity, there is ample evidence that most selective institutions do not aggressively address class inequality. The main exception to the rule involves those institutions which are barred from using race and employ class considerations as an indirect way of promoting racial diversity.

Indeed, recent new stories suggest economic diversity is increasingly taking a back seat in higher education.

  • A February 1 report in U.S. Catholic found that many Catholic colleges, which historically have considered promoting social mobility to be a part of their missions, have fallen behind secular colleges in recruiting, accepting, and keeping low-income students.

  • The New York Times reported on February 5 that wealthy foreign students are taking more seats on college campuses. Moreover, the president of the University of Washington was quoted as saying that the idea of admitting more rich in-state students who were willing to pay out-of-state tuition “does appeal to me a little.”
  • A February 7 article on Inside Higher Ed reports that Virginia governor Bob McDonnell is proposing to limit the ability of universities to use tuition revenue for financial aid. It quotes Virginia’s secretary of education suggesting, “A lot of middle-class students might be paying tuition increases that go toward [someone else’s] need, but they may not be benefitting from that.”

While several leading colleges and universities have expanded financial aid for low-income and working-class students in the past decade, the proportion of students eligible for Pell grants at wealthy colleges remains flat, as admissions policies that in the aggregate fail to provide a leg up to low-income students prevent most such students from ever getting to the point of receiving financial aid. A Supreme Court decision requiring universities to first pursue racial diversity through race-neutral means could change this dynamic considerably.

Will the Court take the Fisher case? It’s anyone’s guess, but many think it will. Conservative opponents of affirmative action, such as Roger Clegg of the Center for Equal Opportunity, note that there are no other cases challenging affirmative action in the offing. With a fragile 5-4 conservative majority, and an aging set of justices, it may be that the Fisher case will be hard for a majority of the Court to pass up.

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