Is the Supreme Court's doomsday clock ticking for "racial preferences?" Maybe, but the states that already ban race-based admissions show how you can build diversity by other means.
First let's define terms. As with the abortion debate and other moral disputes, you can tell a lot about where somebody stands on this issue by which words they choose to use. What supporters call "affirmative action," critics often call "preferences." But there is a difference. "Affirmative action" covers a broad range of proactive measures to promote diversity and equal opportunity through fair selection and outreach. "Preferences" tends to mean the allocation of opportunities based at least partly on race or ethnicity.
With that in mind, the Supreme Court's latest affirmative action case, Fisher v. University of Texas, boils down to this: Can we have effective affirmative action without "preferences"? Plaintiff Abigail Noel Fisher claims that she was denied undergraduate admission to the University of Texas at Austin in 2008 because she is white. The university argues that its admissions system since 2005 has been based mainly on class rank.
That policy, known as the state's "Top 10 Percent Law," guarantees automatic admission to Texas public universities for in-state students who graduate in the top 10 percent of their high school class.
The idea, which some other states also use, has broad appeal. Because our society is so unfortunately segregated by ethnicity and class, the Top 10 Percent Law encourages racial and economic diversity without putting racial quotas up in anyone's face.
Nevertheless, the university, like most others across the nation, argues that the Top 10 Percent Law by itself does not ensure enough racial and ethnic diversity. So it added a "holistic review" that includes race among an array of other factors -- including academic record, personal essays, extracurricular activities, honors and awards, and other special circumstances.
Is even a little racial consideration too much? We'll see. Previous Supreme Courts have said that race can be considered as one of many other factors. However, over the years, the Supremes have narrowed how much race can be considered. This time, advocates fear, the court may do away with racial considerations altogether.
Yet we still could have affirmative action without racial preferences, suggests a new report by The Century Foundation, a nonpartisan think tank. Titled "A Better Affirmative Action," it describes how seven states, accounting for more than a quarter of the nation's high school students, have abandoned racial and ethnic preferences in state universities without giving up their pursuit of diversity. Instead, the report concludes, the "end of racial preferences" often leads to "a better affirmative action" like Texas' plan that addresses "the less visible, but more powerful, issue of class inequality," which helps poor whites, too.
And, even if the high court were to sweep away all racial considerations, as California's Proposition 209 did in 1996, it actually could be good news for diversity and for minority students, according to a new book by UCLA law Prof. Richard Sander and Stuart Taylor, Jr., a lawyer and fellow at the Brookings Institution.
The title summarizes their argument: "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It." The term "mismatch" describes racial preferences that with the best of intentions unfortunately put minority students into competition with far better prepared classmates. This too often has caused some minority students to fail who could have done very well at a less competitive, less-elite college or university.
Yet despite initial post-Prop 209 gloom over a drop in minority enrollment at California's most prestigious state universities, Berkeley and UCLA, the schools soon saw a surprising surge in top-performing minority applicants, many of whom applied without identifying their race or ethnicity as anything but "none of the above." Many top-performing minority students were actually attracted by the fact that the state's schools were no longer taking race into account. Overall the University of California system saw gains in black and Hispanic enrollment and graduation that outpaced other groups.
As a long-time defender of affirmative action, I used to think the so-called "mismatch" problem was an over-hyped myth. But Sander and Taylor make a convincing case and, more important, good recommendations to keep affirmative action alive -- without preferences.