Will the Supreme Court Kill Diversity?

The Supreme Court’s decision yesterday to hear a new challenge to affirmative action may be the beginning of the end of higher education’s heavy reliance on race in student admissions. As I argued in an article yesterday on Slate, given the conservative makeup of the U.S. Supreme Court, a decision in the case, Fisher v. Texas, is likely to sharply curtail the ability of universities to use race in admissions.

But does that mean an end to diversity efforts? Not at all. In states where public institutions have been banned from using race by voter initiative or court order, colleges and universities have, to their credit, responded by instituting alternative forms of affirmative action – giving a leg up to economically disadvantaged students, for example, or admitting students in the top of their high-school class irrespective of SAT or ACT scores.

Some leading voices in higher education are skeptical that such alternatives can produce much racial and ethic diversity. This morning, for example, I was on a radio show with Lee Bollinger, the esteemed president of Columbia University and the defendant in the landmark 2003 Grutter v. Bollinger case upholding racial preferences at the University of Michigan Law School. On “The Takeway,” Bollinger argued that race-neutral affirmative-action programs such as those for economically disadvantaged students do “not result in racial and ethnic diversity” because most poor people are white. UC Berkeley and UCLA, he suggested do not “have anything close to the diversity that they had prior to Prop. 209,” which banned racial considerations in admissions.

In point of fact, however, both Texas and California have managed to produce substantial racial and ethnic diversity without employing race in admissions.

In the 1990s, the University of Texas was barred from using race in admissions by the Fifth Circuit Court of Appeals decision in Hopwood v. Texas and adopted one program automatically admitting those in the top 10 percent of their high-school class; and another considering academic records in the context of “special circumstances,” including “socio-economic status, whether the applicant is from a single-parent home, language spoken at home, family responsibilities, socio-economic status of the school attended, and average SAT or ACT score of the school attended in relation to the student’s test scores.” (Texas subsequently reinstated the use of race, which sparked the Fisher litigation.)

During the period when it was barred from using race, Texas’s two race-neutral plans produced more racial and ethnic diversity than when the university employed race prior to Hopwood. In one year, the freshman class was 4.5 percent African Americans and 16.9 percent Hispanic — slightly better than the 4 percent black and 14 percent Hispanic representation achieved in the pre-Hopwood days when race was employed. These rates of diversity were also comparable to those found at the University of Michigan Law School, where classes ranged from between 13.5 and 20.1 percent minority and were deemed to have achieved a “critical mass” of such students.

The University of California system, which was barred from using race following passage of a 1996 voter initiative, Prop. 209, has likewise employed a percentage plan and economic affirmative action, among other race-neutral approaches. In the years since Prop. 209, the overall UC system—which includes nine campuses—has seen an increase in racial and ethnic diversity. According to Equal Opportunity in Higher Education: The Past and Future of California’s Proposition 209, the proportion of blacks and Latinos who made up new freshman initially declined from 18 percent in 1997 to 15 percent in 1998, the first year of race-blind admissions, but by 2008, it reached 24 percent. The elite institutions—UC Berkeley and UCLA—have still not fully recovered the diversity levels found prior to Prop. 209, but they’ve made a great deal of progress. The share of African American and Latino new freshman declined from 23 percent in 1997 to 14 percent in 1998, but has since rebounded to 20 percent. And UC Berkeley and UCLA are among the most socioeconomically diverse selective colleges in the entire nation.

How would economic affirmative action work at selective private and public colleges nationally? A 2004 Century Foundation study of the nation’s most selective 146 colleges and universities found that while university admissions based on grades and test scores would yield student bodies that have a 4 percent combined black and Latino representation, class-based preferences would boost that to 10 percent black and Latino, close but somewhat short of the current 12 percent representation. Moreover, embracing socioeconomic factors not included in the Century Foundation study—such as wealth—could boost racial diversity even further, as black income is 60 percent of white income, but black net worth is just 5 percent of white net worth.

All of which is to say that the national conversation on affirmative action has evolved since the last time the Supreme Court considered the issue. In the 2003 Grutter v. Bollinger debate, Michigan had not developed a race-neutral alternative to affirmative action. In the 2012 case of Fisher v. Texas, UT Austin has a well-defined and highly functioning alternative. This, it seems to me, is a much more reasonable discussion: not whether we should have affirmative action, but what kind of affirmative action we should have.

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