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The University of Texas’ Weak Affirmative-Action Defense

On Monday, as Peter Schmidt noted in the Chronicle, the University of Texas at Austin filed its brief with the U.S. Supreme Court defending the use of racial preferences in admissions. Like the brief of the petitioner, Abigail Fisher, the UT Austin argument is pitched directly at the likely swing vote on the Supreme Court, Justice Anthony Kennedy. I doubt it will be persuasive.

UT Austin faces an uphill battle because the Supreme Court has long held that race can be used to promote diversity in higher education only if it is “necessary”; Kennedy has emphasized that race should be used as a “last resort,” where race-neutral means won’t suffice. For years, supporters of affirmative action argued that no workable alternatives existed for creating racial diversity. In the words of Justice Harry Blackmun’s opinion in the 1978 Bakke case: “I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.”

But UT Austin did find another way. As the UT brief acknowledges, in the fall of 1996, using race in admissions, UT Austin’s freshman class was 4.1 percent African American and 14.5 percent Hispanic. When UT Austin was temporarily barred from using race by a lower court, it adopted a socioeconomic affirmative-action plan and a program to admit students in the top 10 percent of every high-school class which resulted, in 2004, in a freshman class that was 4.5 percent African American and 16.9 percent Hispanic—marginally more diverse than under the race-based plan.

Faced with these facts, the UT Austin brief makes two central arguments to suggest that its race-neutral plans were nevertheless inadequate, justifying the reinsertion of race after 2004. First, UT suggests that diversity at the school-wide level is insufficient; what’s truly important is diversity at the classroom level. Even with the 2004 levels of diversity, there were thousands of classroom in which black and Latino students “were nearly non-existent,” the brief argues.

Second, UT suggests, the class-based affirmative-action and top-10-percent plans didn’t produce sufficient levels of socioeconomic diversity within the student body’s black and Latino communities. Those admitted through the 10-percent plan were more likely “to be the first in their families to attend college,” for example, than those admitted through a racial preference. Having wealthier black and Latino students in the mix, Texas argues, is critical to the process of “breaking down racial stereotypes” that other students might have.

Will these arguments fly with the Supreme Court? Shifting the traditional focus from schoolwide diversity to classroom diversity seems unlikely to convince a majority of the justices, as there are mathematical challenges to ever ensuring a critical mass of students in all classrooms. Such a requirement is likely to raise concerns that the use of race could be justified for many, many years into the future.

And the argument for using race to admit more advantaged students of color highlights the very weakest moral argument for affirmative action. President Obama himself recognized this when he suggested that his own daughters, as fairly privileged students, do not deserve an affirmative-action preference. Rich kids of all colors predominate at selective universities, and research finds that 86 percent of African Americans at these institutions are middle- or upper-middle class. Besides, wealthier students of color are, on average, the candidates most likely to qualify for admission on the merits. Texas’ innovation—to draw in greater numbers of low-income students of all races—is precisely what’s missing in American higher education today.

Next week, the amicus briefs for supporters of affirmative action are due to be filed. Advocates of racial preferences should hope that stronger arguments can be mustered than have been by the University of Texas itself.

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