Earlier this week, The Chronicle published an important article by Peter Schmidt on Fisher v. Texas, the latest legal challenge to affirmative action that may wind up on the U.S. Supreme Court’s docket. Opponents of affirmative action have filed briefs urging the High Court to take the case, while supporters have just been invited by the Court to respond.
The early maneuvering is important because Fisher could well turn out to be far more significant in determining the shape of affirmative action in higher education than the 1978 decision in Bakke v. Regents of the University of California or the 2003 decision in Grutter v. Bollinger. While those earlier cases essentially gave the green light to universities to pursue carefully tailored race-conscious policies, Fisher could potentially send affirmative action in a very different direction.
As Schmidt notes, among the key questions in the case is whether universities may use race in admissions even though race-neutral alternatives produce substantial racial diversity by themselves. The article emphasizes Texas’s use of the Top 10% plan, which automatically admits those in the top decile of their high school class, a program which has garnered most of the press attention. But as the court filings show, Texas has for several years also relied on a socioeconomic affirmative-action program as a race-neutral measure. UT examines 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.”
After a lower court banned the use of race in Texas and surrounding states in the 1996 Hopwood v. Texas case, the two race-neutral programs produced a freshman class that in 2004 was 4.5 percent African Americans and 16.9 percent Hispanic — slightly better than the 4 percent black and 14 percent Hispanic representation achieved in the days prior to Hopwood when race was employed. After the Supreme Court’s Grutter decision, UT Austin reintroduced the use of race, an action the Fisher case challenges.
Texas’s use of socioeconomic status in admissions is important because it can help rebut critics who say that the Top 10% plan is unworkable outside of Texas. A Top 10% plan may produce less racial diversity in states where public high schools are less segregated than they are in Texas. And it is hard to know how a Top 10% plan would apply to colleges which draw upon a national pool of applicants.
Importantly, an amicus brief recently filed by journalist and lawyer Stuart Taylor Jr. and UCLA Law School professor Richard Sander raises the issue of socioeconomic affirmative action as it relates to the Fisher case. Taylor and Sander begin by noting “the shocking lack of socioeconomic diversity in the upper reaches of higher education.” For example, they note that a student from the bottom quarter of the socioeconomic distribution “is less than one-hundredth as likely to attend a ‘top ten’ law school as a young person from the top tenth” of the distribution by socioeconomic status (SES). They further point to empirical evidence that there is “a rich, untapped supply of low and moderate-SES students who could enhance diversity” at universities, both because low-income students in general bring different life experiences to the classroom and because a disproportionate share of low-socioeconomic students are black and Hispanic. While universities claim to already provide a leg up to socioeconomically disadvantaged students, Taylor and Sander note, “data from law schools suggests that low-or-moderate SES is a disadvantage in admissions, when controlling for other credentials like LSAT scores and college grades.”
The opening salvos in Fisher suggest that the class issue, long ignored by higher education, may soon be front and center in the affirmative-action debate.
