‘A Third Path On Affirmative Action.’
Sunday’s New York Times featured an important article by Supreme Court reporter Adam Liptak, entitled, “College Diversity Nears Its Last Stand.” In the piece, Liptak notes that experts think the U.S. Supreme Court will probably accept a challenge to racial affirmative action at the University of Texas at Austin. The article furthermore suggests that if the Court takes the case, there may be five votes to strike down racial preferences bringing about “the end of affirmative action at public universities.”
In framing the issue, the article quotes supporters of racial preferences and diversity, as well as those, such as Peter Wood of the National Association of Scholars and Peter H. Schuck of Yale Law School, who say racial diversity in education is overrated. The article leaves readers with the impression that the Court essentially has two options: it could strike down the use of race and see racial diversity plummet or it could affirm the use or race, as the Court did in the 2003 Grutter v. Bollinger case, and preserve the status quo. But polls have long suggested that Americans are looking for a third option—they value racial and ethnic diversity in higher education, but don’t want applicants casually judged by skin color—and the Supreme Court may very well try to thread that needle.
This third path, which validates racial diversity as a compelling interest in higher education, yet seeks to limit the explicit use of racial preference to a “last resort,” may well be where Justice Anthony Kennedy, the swing vote on the Supreme Court, wants to take the country. In a 5-4 2007 decision involving the use of race in student assignment at the K-12 level, Justice Kennedy said diversity is a compelling interest but struck down a plan which explicitly favored or disfavored individual students based on their race, suggesting alternative routes to achieving diversity were available.
In the possible upcoming Supreme Court challenge, the University of Texas at Austin employs what Liptak calls an “idiosyncratic” admissions system. Since the 1990s, UT has admitted students who are in the top 10 percent of their high school class and has provided preferences to socioeconomically disadvantaged students of all races. But following the 2003 Grutter decision, UT reintroduced the use of race in admissions. This hybrid system is indeed idiosyncratic; most universities don’t try to find race-neutral ways of achieving racial diversity, instead jumping straight to using race. But that is precisely why opponents of preference chose to highlight UT Austin. They argue that race-neutral methods produced a class with substantial racial diversity (16.9 percent Hispanic and 4.5 percent black) in 2004, prior to the reinstatement of racial preferences.
Could UT’s success be replicated elsewhere? According to 2004 research published by the Century Foundation, class-based affirmative action would produce three-fourths as much racial diversity as using race at the most selective 146 colleges and universities. While university admissions based on grades and test scores would yield student bodies that have a 4-percent combined black and Latino admissions, class-based preferences would boost that to 10 percent black and Latino, somewhat short of the current 12-percent representation. Socioeconomic factors not included in the Century Foundation study—such as wealth—could boost racial diversity even further, as black income is 60 percent of white income, but black net worth is just 5 percent of white net worth.
Some will suggest this indirect approach to racial diversity is too “cute.” If the goal is racial diversity, why not be honest, and use race per se? But this criticism ignores the insight that both public opinion and Supreme Court doctrine provide: Judging individuals by race is morally repugnant, something to be reserved only for cases when it’s absolutely necessary. Moreover, there are important moral reasons to want to promote socioeconomic diversity and mobility independent of race. Today, research finds, universities give substantial weight to race but essentially no preference for socioeconomic status in admissions. A ruling by the Supreme Court curtailing the use of race could reverse this equation, encouraging universities to place great emphasis on socioeconomic status, while little or no emphasis on race. College diversity, in this case, wouldn’t be taking its “last stand.” It would be taking a new and different form that at long last addresses the nation’s profound and growing chasm between rich and poor.