Opponents of affirmative action have leveled a new three-pronged attack on affirmative action in higher education that could significantly change admissions at selective universities and colleges for the better.
The Project on Fair Representation, which was behind the recent Supreme Court litigation in Fisher v. University of Texas, has launched websites soliciting white and Asian plaintiffs who believe they were discriminated against by racial-preference policies at three institutions: Harvard University, the University of Wisconsin at Madison, and the University of North Carolina at Chapel Hill. The campaign is timed to capitalize on student frustration from having just received rejection letters from selective colleges and universities.
Strategically located in three different judicial circuits, the cases highlight affirmative action’s leading vulnerabilities. At Harvard, preference policies appear to hurt Asian-Americans, a group that has suffered its own history of discrimination. At the University of Wisconsin, preferences provide very large advantages based on race, not the modest “plus factor” that the Supreme Court has endorsed. And, most importantly, at the University of North Carolina, officials concede that they have found a way to promote racial diversity without resorting to racial preferences but have declined to do so because the change might modestly affect the institution’s academic status.
The Harvard case underlines the ways in which diversity programs can in practice not only provide a floor for underrepresented minorities (African-Americans and Latinos) but also discriminate against overrepresented minorities in America (Asian-Americans). Although it is private, Harvard, as a recipient of federal funds, is subject to Title VI of the Civil Rights Act, which prevents discrimination.
Ron Unz, in a lengthy analysis in the December 2012 American Conservative, outlined evidence suggesting that even as Asian-American have grown in their representation among highly talented high-school students, their proportion at Harvard has remained remarkably steady. Research by Princeton University’s Thomas Espenshade and his colleague Alexandria Radford, likewise, finds that Asian-Americans generally need to score 140 points higher on the SAT (math and verbal) than whites to have the same chance of admissions at selective colleges.
The University of Wisconsin at Madison exposes a second vulnerability by showing that in many cases, considerations of race go far beyond being a “tie breaker” among equally qualified candidates, as many universities suggest. According to an analysis by the conservative Center for Equal Opportunity, when controlling for academic record (SAT scores and high-school class rank), “the odds ratio favoring African-Americans and Hispanics over whites was 576 to 1 and 504 to 1, respectively” at Madison. Espenshade and Radford find that at highly selective private colleges, African-Americans receive an admissions boost worth 310 SAT points compared with whites (on the 1600-point scale).
But the third institution—the University of North Carolina at Chapel Hill—may be the most vulnerable of all because the challenge there directly follows on the U.S. Supreme Court’s 2013 decision in Fisher v. University of Texas.
In Fisher, the Supreme Court supported the goal of racial diversity but sought to steer universities away from explicit racial preferences. The Court ruled that colleges bear “the ultimate burden of demonstrating, before turning to racial classifications, that available workable race-neutral alternatives do not suffice.” Race-neutral strategies include plans that provide a leg up to economically disadvantaged students of all races, policies that admit all students at the top of their high-school class (irrespective of SAT and ACT scores), that reduce reliance on legacy preferences, that create partnerships between universities and high-poverty high schools, and the like.
But universities have resisted the decision, and more than 90 percent say they have no intention of changing their reliance on race. Colleges, left to their own devices, would rather use race in admissions over alternatives that might benefit socioeconomically disadvantaged students of all races, for three reasons: A lack of racial diversity is more obvious and visible to the naked eye than a lack of socioeconomic diversity; racial diversity is less expensive to achieve than socioeconomic diversity, as universities can recruit fairly well-off students of all colors; and while civil-rights groups lobby hard for using race in admissions there is no comparable lobbying group to support working-class students.
Chapel Hill is a case in point. It filed an amicus brief in Fisher that conceded it could, in fact, achieve comparable— indeed slightly more—racial and ethnic diversity with a policy of admitting students in the top 10 percent of high schools, as the University of Texas at Austin does. Such a plan would also likely yield greater socioeconomic diversity at UNC. At Austin, about three-quarters of students are admitted under the percentage plan, with the other quarter admitted by administrator discretion (including the ability to consider race). In 2013, 21 percent of those admitted under Texas’s percentage plan came from families making less than $40,000 a year, compared to just 6 percent admitted through discretionary admissions.
Yet in its Fisher brief, Chapel Hill claimed the plan was unworkable because it would cause the institution’s median SAT score to decline by 50 points. The Project on Fair Representation will now press this issue and see whether courts will agree that avoiding a modest drop in SAT scores, from the 91st to the 86th percentile, renders Chapel Hill’s use of racial preferences “necessary” under the Constitution.
In the affirmative-action wars, the promotion of social mobility across racial lines should be something people of all political persuasions champion. The new lawsuits should help move us toward a new, better form of affirmative action that addresses the economic divisions that President Obama has labeled America’s defining challenge.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action.