The Achilles Heel of Affirmative Action

Justice Anthony Kennedy’s comments in oral arguments for “Fisher v. University of Texas” merit close scrutiny because he is seen as a possible swing vote in the case.

When I attended Wednesday’s Supreme Court oral argument in Fisher v. University of Texas, all eyes were on Justice Anthony Kennedy, in whose hands, most people believe, rests the fate of racial affirmative action in higher-education admissions. Four justices to Kennedy’s right appear to strongly oppose racial preferences as unconstitutional, while three to his left favor them (Justice Elena Kagan recused herself).  Justice Kennedy, who dissented in the 2003 Grutter v. Bollinger decision upholding the use racial preferences in admissions at the University of Michigan Law School, was mostly silent during the argument, but as news accounts have noted, he did weigh in on a critical discussion of whether privileged minorities should receive racial preferences.

The stage was set when Justice Samuel Alito Jr., who replaced Justice Sandra Day O’Connor, the pivotal vote in favor of affirmative action in Grutter, asked the University of Texas’ lawyer, Gregory G. Gare, about Texas’ claim that it needs to use race in order to admit socioeconomically advantaged black and Latino students. Justice Alito began, “I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before.”

Justice Alito noted that through race-neutral alternatives, Texas was able to admit “lots of Hispanics and a fair number of African-Americans.”  Indeed, the record shows that when Texas was temporarily banned from using race by a lower court decision, it was able to achieve—through a socioeconomic affirmative-action program and one that admits students in the top 10 percent of their high-school classes—higher levels of both black and Hispanic representation than it had attained when using race in admissions before the court ban.

Justice Alito noted that Texas claimed, however, that the race-neutral alternative approach was “faulty because it doesn’t admit enough African-Americans and Hispanics who come from privileged backgrounds.” And, indeed, on Pages 33 and 34 of its brief, UT made the somewhat astonishing argument 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 play against stereotypes.

Set aside the fact that American universities have no dearth of privileged students of any colors—86 percent of African-Americans at selective colleges are middle or upper class—or that those minority students most likely to be admitted without a preference are those from wealthy backgrounds. To most Americans, the privileged minority student is the very least sympathetic affirmative-action case, which helps explain why President Obama has said his own daughters do not deserve a racial preference in college admission.

Justice Alito pressed on. Does a minority applicant whose parents are successful lawyers and are in the “top 1 percent of earners in the country” deserve an admissions preference over white and Asian applicants from families of more modest means? Gare’s eventual response, “we want minorities from different backgrounds,” spurred Justice Kennedy to comment, “So what you’re saying is that what counts is race above all.” Justice Kennedy continued, “The reason you’re reaching for the privileged is so that members of that race who are privileged can be representative, and that’s race.”

Because Justice Kennedy is the likely swing vote on the court, these comments made it into news accounts in The New York Times, The Washington Post and other major outlets. But the background issue that prompted the discussion—does the wealthy child of a black or Hispanic lawyer deserve a preference over the white or Asian student from an average economic background—crystallizes America’s unease with affirmative action, and also points to a new, better way to admit students should the Supreme Court curtail the use of race.

As I outlined in a recent Chronicle article and a Century Foundation report, in 10 leading universities where race has been dropped from admissions, almost all have adopted socioeconomic affirmative-action programs for students of every race, and seven have met or exceeded the proportion of students who are African-American and Latino compared with prior race-based programs. The new groups of minority students, who are more likely to be working class, represent the very best of affirmative action: strivers who have overcome odds and may have greater potential than the advantaged students of any race who now predominate at selective institutions.

Some might question the sincerity of Justice Alito’s concern for low-income families, given that in other contexts (e.g. campaign finance), he sided with wealthy and powerful institutions. And the Supreme Court cannot compel universities to support class-based affirmative-action programs. But by curtailing the ability of universities to use race—an outcome that seems even more likely after Wednesday’s oral argument—the Supreme Court could create the conditions under which universities will use socioeconomic preferences, however grudgingly, to create the racial and ethnic diversity that higher education rightly prizes. And if low-income and working-class students of all races get a chance to go to selective colleges and join this nation’s leadership class, we will be a better and stronger country.

(Photo from Wikipedia)



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