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Next Week’s Court Hearing on Affirmative Action

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.

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