When the U.S. Supreme Court hears a challenge to the racial affirmative-action program at the University of Texas at Austin this fall, one of the big issues will be whether Texas’s two “race-neutral” alternative programs provided sufficient racial and ethnic diversity to make the use of race unnecessary—and therefore illegal. Did programs to provide affirmative action based on socioeconomic status, and to automatically admit students in the top-10 percent of every high school class, create an adequate level of racial and ethnic diversity by themselves?
Last week, the Chronicle reported on an interesting new study by two Princeton University sociologists, Angel L. Harris and Marta Tienda, on the impact of the Texas top-10-percent law on Hispanic students. The report, which was published in Race and Social Problems, analyzes Hispanic admissions to Texas’s two most selective institutions—UT Austin and Texas A&M—from 1993-2003. During this period, Texas employed three different systems of admissions. For the period 1993-96, Texas used race in admissions. After being banned from using racial affirmative action by a lower-court decision, Hopwood v. Texas, Texas employed no system of affirmative action in 1997. Then, from 1998-2003, Texas used the top-10-percent plan and a system of socioeconomic affirmative action. (Texas subsequently added race back into the mix, which led to the Supreme Court challenge, Fisher v. Texas.)
Critics of affirmative action suggest that the Texas 10-percent plan and the socioeconomic affirmative action program did a good job of creating diversity without resorting to race or ethnicity per se. They note that prior to the Hopwood decision, when race-based affirmative action was in place, UT Austin had a student population that was 4-percent black and 14-percent Hispanic, and that during the top-10-percent and socioeconomic affirmative-action regime, the freshman class was in one year actually slightly more diverse: 4.5-percent African Americans and 16.9-percent Hispanic.
Harris and Tienda point out, correctly, that this bottom-line analysis ignores the fact that part of the reason the top-10-percent and socioeconomic affirmative-action plans could produce so much diversity was that the number of Hispanic high-school graduates rose 78 percent from 1994 to 2004, During this period, the Hispanic share of Texas high-school diploma recipients increased from 29 percent to 35 percent. The authors argue, “Despite popular claims that the top-10-percent law has restored diversity to UT and TAMU, our results show that Hispanics are worse off relative to whites than they were under affirmative action.” The researchers conclude that “affirmative action is the most efficient policy to diversify college campuses.”
Each of these observations is true, but from a legal standpoint, it is doubtful that they will be persuasive to the U.S. Supreme Court. The legal standard is not which policy is more “efficient” in creating racial diversity. (By definition, if racial and ethnic diversity is the goal, there is no better way to achieve it than by using race and ethnicity.) Instead, the Court has suggested the harms of classifying individuals by race are such that it should only be used as a “last resort.”
Nor does the legal standard compare racial and ethnic representations of high-school graduates with representations at the university level as a relevant consideration. The standard set out in Grutter v. Bollinger is whether a university has a “critical mass” of minority students sufficient to produce the educational benefits that flow from having a diverse student body. The fact that the University of Michigan Law School’s use of race and ethnicity was thought to have achieved a “critical mass” with classes that averaged from between 13.5 and 20.1 percent minority may well mean that Texas’s use of socioeconomic status and the top-10-percent law will be deemed successful, making the additional use of race and ethnicity unconstitutional.
As a matter of sociology, then, the new Princeton University findings are important. As a matter of law, however, they are unlikely to be dispositive.