Earlier this week, The Washington Post highlighted the possibility that the issue of racial preferences in college admissions may make its way back to the U.S. Supreme Court. In a column titled “Back to School for Racial Preferences in Admissions,” Supreme Court reporter Robert Barnes noted that lower court decisions “have raised the prospect that the issue will return to the high court.”
The story was accompanied by photos of Justice Samuel A. Alito Jr., and retired Justice Sandra Day O’Connor, whom Alito replaced. O’Connor was the pivotal vote in the 5-4 2003 Grutter v. Bollinger case upholding the use of race at the University of Michigan Law School, while Alito is a strong opponent of racial remedies. The current swing justice on the Court, Anthony Kennedy, dissented in Grutter.
In 2003, Kennedy objected that the majority had not applied sufficient scrutiny to “force educational institutions to seriously explore race-neutral alternatives.” That very issue—whether racial diversity can be achieved without using race—is at the center of a new challenge possibly headed to the Supreme Court. In Fisher v. Texas, white plaintiffs allege that the University of Texas at Austin created sufficient racial diversity using a combination of socioeconomic affirmative action and a plan to admit the top 10% of students in every Texas high-school class, rending the subsequent addition of race in admissions unnecessary.
A top-10% plan won’t work at all institutions; it’s hard to see how it would work at private colleges that draw upon a national pool, for example. But the socioeconomic component of Texas’s plan could easily be replicated nationally. And research suggests that class-based plans at the nation’s most selective 146 institutions would create considerable racial diversity.
Some object to the notion of replacing racial affirmative action with socioeconomic considerations because race still matters in our society and imposes unique disadvantages. In a panel discussion yesterday at The Century Foundation that included Ann Marcus of New York University, Lee Daniels of the NAACP Legal Defense and Educational Fund, Dennis Parker of the ACLU Racial Justice Program, and me, Parker stressed the continued salience of race. He pointed, for example, to research finding that black homeowners were more likely to receive subprime mortgages, even controlling for socioeconomic status.
Parker is absolutely right as an empirical matter to suggest that race still matters. Indeed, racial discrimination in the housing market is surely related to the findings of two new studies that blacks and whites of similar income are often quite differently situated. In the first study, released last week, the Pew Research Center found that in 2009, the median wealth of white households was 20 times that of black households and 18 times that of Hispanic households, a far greater differential than that found between those groups for income. Household wealth is closely tied to housing values, which generally appreciate faster in white neighborhoods.
Moreover, a Brown University study released earlier this week found that affluent black and Hispanic households earning more than $75,000 live in poorer neighborhoods on average than low-income whites making below $40,000 a year. Research finds that both factors—having a low net worth and living in concentrated poverty—impose disadvantages on children, above and beyond being low-income, so as a matter of fairness, any well-designed socioeconomic affirmative-action program would include those factors.
But by relying on a wide variety of socioeconomic factors, the reality of racial discrimination in the housing market can be indirectly incorporated into a class-based affirmative-action plan precisely because discrimination has socioeconomic manifestations. Using factors like wealth and neighborhood poverty can also boost the racial dividend of socioeconomic affirmative action.
Significantly, unlike most institutions in society, colleges have access to a great deal of socioeconomic data, including wealth, for every student who applies for financial aid. So in constructing a fair admissions system that will produce diversity of all kinds, why don’t colleges focus on an array of socioeconomic barriers—including those that reflect racial discrimination—rather than resorting to racial preferences? That will be a key question if and when Justice Kennedy and the entire Supreme Court revisit affirmative action in higher education.