Next Tuesday, August 3rd, when many folks in higher education may still be winding up vacations, the U.S. Court of Appeals for the Fifth Circuit will hear oral arguments in the most important affirmative-action case since the 2003 Supreme Court decision supporting the policy at the University of Michigan Law School in Grutter v. Bollinger.
The challenge to the use of race in admissions at the University of Texas at Austin sharpens the focus on a question left hanging in Grutter: How vigorously do universities need to pursue race-neutral alternatives to affirmative action before resorting to racial preferences in admissions? As an excellent article by Morgan Smith in the Texas Tribune last week notes, the fact that UT Austin was banned from using race by an earlier Fifth Circuit decision in Hopwood v. Texas (1996) provides a unique set of circumstances to test whether race-neutral alternatives are able to produce a “critical mass” of under-represented minority students.
In UT’s case, the school adopted two alternatives to race: a plan to automatically admit students in the top 10 percent of their high school class, and a plan to consider an applicant’s academic record in the context of her economic disadvantages, looking at such factors as “socioeconomic status, whether the applicant is from a single-parent home, language spoken at home, family responsibilities, socioeconomic status of school attended, and average SAT or ACT score of the school attended in relation to the student’s test scores.” After Grutter validated the use of race, UT Austin added race back in as a third factor.
In the new challenge, Fisher v. Texas, Abigail Fisher and her co-plaintiff Rachel Michalewicz were denied admission after finishing in the top 12 percent and 10.14 percent of their high school classes, respectively. They do not challenge the 10-percent plan or socioeconomic affirmative action, but instead argue that the use of race was illegal because during the Hopwood era, UT’s use of race-neutral alternatives produced a class that was 4.5 percent black and 16.9 percent Hispanic—exceeding the 4-percent black and 14-percent Hispanic representation achieved prior to Hopwood’s ban on the use of race.
But will attempts to use race-neutral alternatives work at other institutions? What does the research evidence suggest? As I’ve noted elsewhere, a 2004 Century Foundation study found that the use of socioeconomic affirmative action would produce a slight decline in black and Hispanic admissions at selective institutions (from 12 percent to 10 percent), though the use of wealth or net worth as a factor might mitigate that loss. A new analysis at the University of Colorado suggests that a potent form of class-based affirmative action could actually produce even greater racial diversity than the current use of race. (I’ll devote more to this study in a future blog post.) A 2010 Century Foundation study, conducted by Anthony Carnevale and Jeff Strohl, suggests that socioeconomic obstacles are seven times as large as racial obstacles in doing well on the SAT. The authors support using class and race to maintain or boost racial and economic diversity, though it is not clear if today’s more conservative U.S. Supreme Court will back this idea.
The Obama Administration has sided with UT Austin in the case to be argued next Tuesday. Many observers expect the litigation to end up in the Supreme Court, where the majority could require universities to do much more to show they have exhausted race-neutral alternatives to affirmative action. Such a decision could have enormous ramifications, spawning widespread litigation requiring universities to justify the use of race in a much more rigorous fashion than in the past.
For supporters of affirmative action, summer vacation may be over.
6 Responses to Next Week’s Court Hearing on Affirmative Action
sdblogger - July 29, 2010 at 8:53 am
I look forward to reading more about the use of class-based affirmative action – makes me wonder why this hasn’t been the focus all along.For more of my views on student development visit http://www.studentdevelopmentblog.com.
wilcherglobal - July 29, 2010 at 10:24 am
Mr. Kahlenberg, your campaign against affirmative action is getting old and redundant. In no way can you convince reasonable people that substituting socio-economic status for race will be an acceptable solution. As I have said, we have no problem with adding socio-economic status as a criterion in higher education admissions. The University of Michigan did just that and was not given credit for it. Eliminating race, given this nation’s history of discrimination and inequality, will not be acceptable, ever.
wturnertsu - July 29, 2010 at 2:09 pm
Even if the Supreme Court or Congress did finally rule or enacted legislation aproving or authorizing colleges and universities to consider race as a legitimate factor in admissions, there will still continue to be a great disparity between the percentage of African Americans enrolling and matriculating from Institutions of Higher Learning and their white brethrens and sisters.Opponents of equal opportunity for blacks, either anticipating an unlikely ruling from the Courts approving race as a factor, or simply determined to ensure for themselves and their offsprings greater security and advantages, have already created a barrier to at least 25% of African American males attended college: felons need not apply and the matter of acquiring financial aid from the government or banks is out of the question.The large percentage of blacks who are felons, ironically enough, are adjudged to be so by whites, who by and large, are represented on the juries and in prosecutors offices, probation offices and the bench, in those cases that produced the 25%, in the same or much greater percentages than there are African Americans who are deemed felons and unqualified for either admission or aid.The consequence is this: rather than denying blacks opportunities to employment, housing, education and governmental assistance because of their race, they’re being denied becuase they’re felons. At least, so it appears. If race is a primary factor in producing such a large percentage of felons who are black, then, regardless of how you cut it, race is the primary reason a large percentage of blacks are still being deprived and discriminated against. Never-mind the fact that the criminal justice and judicial system has been used to disguise the actual motive by piggy-backing on a popular issue, “tough on crime,” when you tougher on one segment, than another, then the reason for being tougher is also the same reason for the deprivation that the former experience, each time he or she is denied a job, admission, housing or benefits.We have a race problem here in America. It has been with us since slavery; has disadvantaged blacks for centuries; has not been truly addressed by any generation of Americans; and, it cannot and will not go away until we honestly face that fact.For those who protest you came here after slavery or that your foreparents did, here this and here it clearly: If you and/or your foreparents came here seeking to capitalize upon and enjoy the blessings and benefits of this nation, without also accepting some responsibility for her liability, then you display a blantant attitude that is Un-American in the extreme! You cannot come for the benefit and ignore America’s liability. A people, darker in hue than those who brought them here in chains, were exploited and brutalized. Their offsprings are placed in a distinct disadvantage, especially in a capitalist/democratic soceity. To atone for the wrong, which, in fact ocurred over the years to many persons who are dead, is owed to those whom they bore, while here. Americans do not shirk her debts. When junk-bonds and derivatives are sold to the Chineses, we did whatever it took to mitigate the damage. To pay for it, Americans, native-born and future immigrants, alike, for generations to come, must sacrifice. Is our debt to Chineses any more worthy of being satisfied than is our centuries-old debt to enslaved Africans and their offsprings? I think not.Since race accounted for the disadvantages of Africans, it is only fair and just that race be an acceptable factor in eliminating it. To do any less or to suggest any formula that does not clearly state that it is race is to deny a historical fact: Blacks were made slaves, not because they failed an I.Q. test; did not participate in more extra-curricula activities than others; scored less on a standardized-test; or, had a lower g.p.a. They were enslaved because they were black! Enslavement handicapped them and their offsprings and the handicapped cannot be ended or mitigated without addressing the original sin: RACISM!
wturnertsu - July 29, 2010 at 2:22 pm
Better yet, if it is a race-neutral solution you seek, and if you don’t believe that race created them in greater proportion to their white counterparts, open admission and guarantee financial aid to all persons who were convicted of non-violent felonies.All felons, regardless of standing in class, race, gender, national-origin, religious affiliation, sexual-orientation or political leaning are hereby guranateed seats in colleges and universities of their choice. You must admit, if you think race had nothing to do with their status as felons, that such would be a definite race-neutral solution, would it?We need to stop being hypocrits; admit that blacks were wronged and that they still suffer, as a result of the country’s wrong committed against them; commit to atoning; and, pledge to never single-out another distinct people, ever again, for total domination and absolute exploitation…
22221103 - July 29, 2010 at 4:00 pm
wilcherglobal – “In no way can you convince reasonable people that substituting socio-economic status for race will be an acceptable solution.” I guess Dr. King’s vision of people being judged on their character (which is reasonably better measured by socio-economics than race) instead of the color of their skin was just a pipe dream.
marka - August 4, 2010 at 2:38 pm
Thank you, 22221103. Wilcherglobal, et al, apparently didn’t read the article, or its citation to evidence that socioeconomic factors result in representational percentages of otherwise disadvantaged groups. [By the way, we are all part of the human 'race' -- talking about other races is the very definition of 'racism' - and discriminating either for or against someone on the basis of this kind of 'race' is racism.] Personally, I find it offensive that wilcherglobal paints anyone who disagrees as ‘unreasonable.’ Fie on thee … Affirmative action was created as an exception to the prohibition against discrimination on the basis of race, as a necessary evil to overcome the underrepresentation of various groups based on the color of their skin (and other markers of ethnic backgrounds). And that was because we began to use proportional representative as a proxy for such discrimination — it being harder & harder to prove overt discrimination (it was easy to prove in the 50s, 60s, and 70s).If we now can demonstrate that we get proportionate numbers using factors other than ‘race,’ why hang on to ‘race,’ which is explicitly banned via the Civl War amendments & enacting legislation? Or to put it another way, why should a privileged rich ‘black’ or ‘red’ or ‘brown’ skinned individual be preferred over a poor underprivileged ‘white’ or ‘yellow’ skinned individual? Has there been unfair discrimination in the past? Of course. Not only against ‘colored,’ but Jews, Catholics, Irish, Italian, hillbillies and other poor white trash, etc. But once a group is no longer discriminated against, as demonstrated by proportional representation, for example, why hang on to the otherwise banned categorization?