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Obama’s Affirmative-Action Brief

On Monday, the Obama administration, along with most of the higher-education and business establishment, weighed in with amicus briefs in support of racial preferences at the University of Texas at Austin. Given Barack Obama’s mixed messages on affirmative action in the past—he has said his own daughters do not deserve a leg up in admissions and that he understands the resentment toward preferences by whites who do not feel particularly privileged—there was a modest hope that he would break with longstanding Democratic Party orthodoxy to promote a better kind of affirmative action that looks at gaping economic inequalities in our country rather than just counting skin color. He blinked, however, and filed a brief that is unlikely to do anything to change the minds of Supreme Court justices and may do real damage to the president’s own re-election chances.

The administration’s brief with the Supreme Court argues that even though the University of Texas at Austin was able to achieve substantial racial and ethnic diversity without using race—by giving a preference to low-income students and automatically admitting students in the top 10 percent of their high school—Texas was right to restore racial preferences in the freshman class beginning in 2005 so that the university would better reflect the state’s demographic breakdown.

This argument is plausible in the policy world but has never been accepted by the U.S. Supreme Court. In the 2003 decision upholding affirmative action, Grutter v. Bollinger, Justice Sandra Day O’Connor, the decisive vote, 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 administration’s 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, in which a Grutter dissenter, Anthony Kennedy, is widely believed to hold the swing vote.

Some of the amicus briefs filed in support of Texas may actually hurt the case for racial preferences. Notable is a brief filed by the highly regarded and normally savvy dean of the University of North Carolina Law School, Jack Boger, on behalf of UNC Chapel Hill. According to the document, UNC admissions officers ran a simulation of what would happen if the university were to drop racial preferences and admit students from the top 10 percent of high-school classes in North Carolina. The brief indicates that racial and ethnic diversity would actually increase—from 15 percent to 16 percent “non-white and underrepresented students”—but the average SAT of entering pupils would decline by 55 points. This strikes me as a fairly damning admission. The Supreme Court so strongly disfavors state institutions using race to decide who gets ahead that it requires that the use of racial preferences be “necessary” to further a “compelling” purpose. I would be surprised if the justices found that avoiding a 55 point SAT decline truly meets this very high standard.

Indeed, while the onslaught of affirmative-action briefs from higher education on one level represents a sincere desire for greater racial equality, it has another less virtuous side to it. On the whole, higher education doesn’t wish to address deep class inequalities, which is why rich kids outnumber poor kids on selective campuses by 25 to 1. In addressing inequality, universities favor race-based affirmative-action programs, which tend to recruit middle- and upper-middle-class students of color, because they provide what Stephen Carter has called “racial justice on the cheap.” When universities have been banned from using race by state initiative or lower courts, by contrast, they have reluctantly adopted a number of somewhat costly (though highly worthy) programs to indirectly promote racial diversity.

Colleges have created new partnerships with disadvantaged high schools to improve the pipeline of low-income and minority students. Universities have given a preference in admission 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 adopted percentage plans like Texas’s, which grant access to students from low-income schools that had little history of sending graduates to selective colleges when racial affirmative action was in place.

Coming up with effective race-neutral alternatives is hard work, expensive, and certainly less “efficient” than racial preferences if one’s narrow goal is attaining a certain racial and ethnic representation in the student body. But the University of Texas’s experience proves that it can be done, even if such efforts may require sacrifices, such as postponing faculty salary increases to support expanded financial aid.

By defending the old regime of racial preferences, the Obama administration’s brief is likely to hand conservatives a winning political issue, as I noted recently in the New Republic. While some Republicans have been reluctant to raise the issue of affirmative action so as not to appear to be race-baiting, Mitt Romney has the political gift of a U.S. Supreme Court case, to be argued on October 10, which places the issue squarely on the national agenda. And now, Romney also has a clumsy administration brief that is both politically tone deaf and legally unpersuasive. President Obama was uniquely positioned to move the Democratic Party to a better place on affirmative action—one which recognizes that low-income students of all races deserve far better—and instead fell back on stale thinking that the Supreme Court is quite likely to dispose of in the coming months.

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