This contribution to our symposium on Fisher v. University of Texas comes from Richard D. Kahlenberg, a senior fellow at The Century Foundation, the author of The Remedy: Class, Race, and Affirmative Action (1996), and the editor of Rewarding Strivers: Helping Low-Income Students Succeed in College (2010).

In Fisher v. University of Texas, the Supreme Court should strike down Texas’s use of racial preferences in admissions, not because racial diversity is unimportant, but because Texas was able to achieve it without using race.  From a legal standpoint, race should be used to determine who gets ahead only as a last resort, and from a policy standpoint, pushing universities to pursue race-neutral alternatives before resorting to race will get them to address fundamental issues of class inequality that they would rather ignore.

Defenders of affirmative action breathed a sigh of relief in 2003, when a divided Supreme Court ruled by a five-to-four vote that the University of Michigan Law School could consider race as one admission factor in the case of Grutter v. Bollinger,.  But in that opinion, the Court declared that universities must engage in “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” The opinion then pointed to universities in California, Florida, and Washington which were “engaged in experimenting with a wide variety of alternative approaches.”

For many years, the courts have required that governments explore alternative means before using race, but there is considerable disagreement over how aggressively race-neutral alternatives must be pursued.  In Grutter, now-retired Justice Sandra Day O’Connor applied a very relaxed standard, declaring:  “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.”  Justice Anthony Kennedy, the swing vote on today’s court, dissented in Grutter, arguing that “[w]ere the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives.  The Court, by contrast, is willing to be satisfied by the Law School’s profession of its own good faith.”

The facts in the Texas case seem tailor-made to confirm Justice Kennedy’s skepticism.  For years, supporters of affirmative action have claimed that no workable alternatives existed for creating racial diversity. In the words of Justice Harry Blackmun’s opinion in Regents of the University of California v. Bakke (1978): “I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.”  But UT-Austin did find another way.

In the fall of 1996, using race in admissions, UT-Austin’s freshman class was 4.1 percent African American and 14.5 percent Hispanic. When UT-Austin was temporarily barred from using race by a 1996 Fifth Circuit ruling in the case of Hopwood v. Texas, the state did not simply throw up its hands and give up.  Instead, it adopted two plans.  First, it created a socioeconomic affirmative-action plan that gave a leg up in admissions by examining grades and test scores 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.”   Second, an interesting political coalition of civil rights advocates and rural white legislators created a program to automatically admit students in the top ten percent of every high-school class.  The “Top Ten Percent Plan” effectively enables students from disadvantaged schools and lower test scores to be admitted when they might otherwise not be.

These two programs resulted, in 2004, in a freshman class that was 4.5 percent African American and 16.9 percent Hispanic.  In other words, the combined black and Hispanic percentage actually rose from 18.6 percent under the old race-based plan to 21.4 percent under the race-neutral programs. 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.

In 2005, Texas added race back into the mix in addition to the class-based affirmative action and Top Ten Percent Plan after the Supreme Court’s Grutter decision effectively overruled Hopwood.  This reinsertion of race led to Abigail Fisher’s lawsuit.

Supporters of affirmative action correctly point out that that while the University of Texas did produce greater diversity using the race-neutral plans, this was true in large measure because Texas became more racially and ethnically diverse over time.  In fact, the university’s growth in diversity failed to keep up with even faster statewide growth in diversity  But while reference to the gap between black and Latino representation at the University of Texas as compared with state-wide numbers is plausible in the policy world, it has never been accepted by the Supreme Court. In Grutter, Justice Sandra Day O’Connor said it is permissible to use race to achieve a “critical mass” of minority students to promote the educational benefits of diversity, but never suggested that it was appropriate to seek racial representation at universities with reference to a state’s demographic makeup. If the argument referencing statewide demographics would have had a hard time prevailing with the Supreme Court in 2003, it is very unlikely to convince a far more conservative Supreme Court today.

Will race-neutral alternatives work beyond the borders of Texas?  We now have considerable evidence that they will.  Several states, educating about one-fourth of the U.S. high school population, have banned affirmative action by voter referendum or executive order, but the good news for people concerned about racial and economic justice is that legislators and university officials have not given up on pursuing diversity.  To the contrary, they invented new systems of affirmative action that in many respects are superior to the old ones they replaced.

Where banned from using racial preferences, universities have spent money to create new partnerships with disadvantaged schools to improve the pipeline of low-income and minority students.  Universities have provided new admissions preferences to low-income and working-class students of all races.  They have expanded financial aid budgets to support the needs of economically disadvantaged students. They have dropped legacy preferences for the generally privileged, and disproportionately white, children of alumni.  They have admitted, irrespective of test scores, hard-working students who graduated at the top of their high school classes, thereby granting access to students from low-income schools that had little history of sending graduates to selective colleges when racial affirmative action was in place.

These efforts have produced considerable racial, ethnic, and economic diversity.  The University of California system, which has been barred from using race following passage of a 1996 voter initiative, Prop. 209, has employed a percentage plan and economic affirmative action, among other race-neutral approaches. The overall UC system – which includes nine campuses – has seen an increase in racial and ethnic diversity in the years since Prop. 209. The proportion of blacks and Latinos who made up new freshman initially declined from eighteen percent in 1997 to fifteen percent in 1998, but by 2008, it reached twenty-four percent.  The elite institutions – U.C. 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 twenty-three percent in 1997 to fourteen percent in 1998 (the first year of race-blind admissions), but has since rebounded to twenty percent.

A forthcoming report from The Century Foundation finds that at flagship universities in several states where race and ethnicity were dropped from admissions and race-neutral alternatives were put in place – Washington, Florida, Georgia, and Nebraska — black and Latino representation has matched or even exceeded levels achieved when race and ethnicity was considered in admissions.  Likewise, studies by researchers at Georgetown University, the University of California, and the University of Colorado have found that class-based affirmative action programs, if properly structured, could produce substantial levels of racial and ethnic diversity at highly selective colleges.

It is understandable the universities would rather use race in admissions because producing racial and ethnic diversity without using race is hard work and far less “efficient” than simply providing an admissions preference based on skin color.  On the whole, university leaders much prefer the prevailing system of racial preference in admission which ignores issues of economic inequality and instead focuses, as Walter Benn Michaels acidly observes, on “what color skin the rich kids have.”  Constructing race-neutral alternatives requires universities to take a number of steps that advocates of social equality have long championed but that universities, fixated on prestige and rankings in U.S News & World Report, are not eager to pursue.  But the Supreme Court should allow the use of race only where it is actually necessary.

Posted in Featured, Fisher Symposium

Recommended Citation: Richard Kahlenberg, Online Fisher symposium: Race-neutral alternatives work, SCOTUSblog (Sep. 4, 2012, 4:36 PM), http://www.scotusblog.com/2012/09/online-fisher-symposium-race-neutral-alternatives-work/