Supreme Court Showdown on Affirmative Action

      When the Supreme Court pulled the plug on an ambitious school desegregation plan for Kansas City in 1995, Justice Ruth Bader Ginsburg complained in dissent that the retreat was both “too swift and too soon” (Missouri v. Jenkins). Much the same could be said about the growing discontent among the American public and among many experts about the efforts to use race-conscious admissions policies in order to increase racial and ethnic diversity in U.S. colleges and graduate schools.
      The latest manifestation of this supposed re-examination of racial preferences came last week [Oct. 4] in a report by the Century Foundation written by Richard Kahlenberg, a longtime advocate of using socioeconomic status instead of race or ethnicity to increase diversity in higher education. In presenting the report at the progressive think tank’s Washington office, Kahlenberg bluntly warned that race-based affirmative action “is likely on its way out” — unpopular with the public and under challenge in legislatures, at the ballot box, and in the courts.
      The discontent is fed further by the new book, Mismatch: How Affirmative Action Hurts Student It’s Intended to Help, and Why Universities Won’t Admit It, by UCLA law professor Richard Sander and legal affairs journalist Stuart Taylor Jr. The book elaborates on Sander’s empirical research over the past decade that he says shows many beneficiaries of racial preferences fare badly in college or law school, doomed to failure because they are competing with academically superior classmates.
      The publication of the report and the book were both timed to coincide with the Supreme Court’s oral arguments on Wednesday [Oct. 10] in the latest showdown on affirmative action, Fisher v. University of Texas. The justices are being asked to invalidate UT’s use of race as part of what administrators describe as a “holistic” evaluation of applicants for about one-fifth of the slots in each year’s entering first-year class.
      The Fifth U.S. Circuit Court of Appeals upheld UT’s policies, saying that they conformed to the criteria set out by the court nine years ago in a University of Michigan case, Grutter v. Bollinger (2003). Attorneys representing Abigail Fisher, an unsuccessful white applicant for admission in 2008, argue that UT’s policies go beyond the limited use of race allowed under Grutter. Alternatively, they urge the court to overrule Grutter and severely limit or completely prohibit consideration of race in college and university admissions.
      The case can be handicapped easily: Justice Sandra Day O’Connor, who authored the majority opinion in Grutter, has been succeeded by Samuel A. Alito Jr., a hard-edged conservative who has cast decisive votes against race-conscious policies in two major decisions since his appointment in 2006. For many court-watchers, the only question in the case is not whether but how far the court will go in limiting race-conscious admissions policies.
      Institutionally, however, the court is not supposed to change course simply because of a change in personnel. So the justices need to closely examine UT’s policies, as they have evolved during two decades’ worth of litigation, along with the densely statistical debate waged in friend-of-the-court briefs about the overall impact of racial preferences. On both counts, the evidence is less than clear-cut and the interpretations by opposing sides in sharp conflict.
      For UT, the pivotal question will be whether the university had good reason to re-introduce some consideration of race after Grutter since it was already using an ostensibly race-neutral mechanism to boost enrollment of African American and Hispanic applicants. The state’s “Top Ten Percent” law, passed in 1997, guarantees students in the top 10 percent of their high school graduating classes a slot at UT’s flagship campus in Austin. With black and Latino students concentrated in racially identifiable schools, the law increases their enrollment, but not enough to satisfy the school. Today, blacks comprise about 4.5 percent of UT’s student body, Hispanics 16.9 percent; both figures are below the proportions for the state’s population overall.
      Justices on both sides may cite the broader policy debate to help make their case. Conservatives will surely cite the supposed costs of racial preferences — stereotyping and stigmatizing minority students — along with Sander’s claimed proof of “mismatch.” The statistical argument goes far beyond what can be elaborated in a weekly column, but it can be said at least that Sander’s conclusion is disputed and, if valid, merely shows the need for universities to follow through with well designed and well resourced academic support for affirmative-action admits.
      As for the alleged stigmatization, Sander and Taylor are selective in quoting prominent African Americans as critics of racial preferences, including Supreme Court Justice Clarence Thomas, who has famously described his indignation at bearing “the taint of racial preference.” They do not note that the court’s only Hispanic justice, Sonia Sotomayor, proudly counts herself as “an affirmative action baby,” apparently unaware of any taint due to her status.
      The University of Texas admitted its first African American student in 1950, only after a unanimous Supreme Court decision forced it to do so (Sweatt v. Painter). Sixty years later, the Austin campus is by no means a model of racial harmony, as seen in a recent report of “bleach ballooning” incidents directed at African American students and fraternity parties with anti-immigrant themes. Admissions policies aimed at making the campus more diverse, on paper and in practice, deserve respectful consideration from a Supreme Court dedicated to equal justice under law.