Affirmative Action Is Over. Long Live Affirmative Action.

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“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Chief Justice John Roberts in a 2007 U.S. Supreme Court ruling on school desegregation.

It sounds simple enough. The only question is, when should we stop discriminating? In kindergarten? When high school seniors are applying to college? Later, when they are looking for jobs?

Fisher v. University of Texas, the affirmative action case now before the court, seems unlikely to resolve such questions. The revolution in race relations of the late 20th century, including race-based affirmative action, has eased into a less fraught, but no less muddy, evolution. Americans have conflicting impulses on justice and equality. Yet a new way forward is taking shape, and the Texas case could expedite the journey.

The case arose when a white woman, Abigail Fisher, sued the university after having been denied acceptance, claiming that less qualified minorities had won admission. Most racial minorities are admitted to the school not under affirmative action but as a consequence of the state’s top 10 percent rule, which guarantees admission to public universities for high school students who graduate in the top 10 percent of their class. Because Texas schools, like those in most states, have a high degree of racial segregation, the top 10 percent at many schools inevitably consists largely of Hispanic or black students.

Tweaked Formula

The formula has been tweaked so that the actual percentage of graduates admitted is closer to 8 percent or 9 percent, depending on the year. After those graduates are admitted, the university fills additional slots using criteria including race, a practice it justifies in order to create a diverse environment -- not only across the campus but also in individual fields of study and classrooms. This is the provision that prompted Fisher’s suit.

It is also the remedy embraced by Justice Sandra Day O’Connor in Grutter v. Bollinger, the Supreme Court’s 2003 ruling that affirmed diversity as a valid goal in higher education. O’Connor said she expected the need for diversity programs to fade in a quarter-century or so. In agreeing to hear Fisher’s case nine years later, the Roberts court appears eager to speed up the timetable.

Diversity itself is on an accelerated track. Births to racial and ethnic minorities now outnumber births to whites; the nation’s transition to a future in which no single race constitutes a majority is almost complete. In a multicultural, multiracial society, institutions such as universities must be largely representative of the citizenship. As an amicus brief filed with the court by Fortune 100 companies says, racial and ethnic diversity in higher education is also in the interest of American businesses seeking to employ a diverse workforce.

The question is how to achieve such goals. More than one- quarter of the nation’s high school students live in seven states that have already banned race-based affirmative action. Voters in California, the largest and most diverse state, elected to end racial preferences in admissions to its public universities in 1996. The percentage of Hispanics and blacks in these schools initially declined, but it has since climbed to about 24 percent, slightly more than half their proportion of the state’s population.

At the state’s most elite schools, the demographics are more skewed. The proportion of Asian students enrolled at the University of California at Berkeley is more than three times higher than their share of state population (and about nine times their share of U.S. population). Meanwhile, the university’s black enrollment is 3 percent, only half that of California’s black population.

Social Mobility

With blacks and Hispanics underrepresented in higher education and with race-based policies on the way out, we need new approaches. A report from the Century Foundation suggests that shifting from race-based affirmative action to class-based affirmative action might be a crucial part of the answer, proving roughly as effective in promoting college racial diversity while doing even more to encourage social mobility.

According to a study by Stanford University’s Sean Reardon, class is a larger obstacle to educational achievement than race. Students from educated, affluent families are seven times more likely to receive a bachelor’s degree than those from low-income families. The racial gap isn’t nearly as large. Similarly, a study by scholars Derek Bok and William Bowen found that the vast majority of black students at selective colleges are either middle- or upper-class.

Affirmative action policies based on economic considerations have the potential to focus society’s efforts on the truly disadvantaged. This path won’t be easy, especially given rising inequality and declining social mobility. And it may take new levels of community engagement, such as a Rutgers University program that works with nearby middle schools and high schools. But by employing affirmative action that takes into account parental income and education levels, family wealth and even single-parent status, universities can potentially achieve greater diversity -- of race and class -- than purely race-based models. One additional benefit might be a boost to poor whites, who find few champions among elite institutions. And by using economic rather than racial preferences, schools will be able to stay on the right side of a Supreme Court that appears determined, sooner than later, to end affirmative action as we know it.

That isn’t a bad thing -- so long as the ideal of colorblindness doesn’t obscure the disadvantages of poverty. In Regents of the University of California v. Bakke, the 1978 case that is a distant antecedent of the Fisher complaint, Justice Harry Blackmun wrote: “In order to get beyond racism, we must first take account of race. There is no other way.”

The road from Blackmun’s view to Justice Roberts’s has been pitted with conflict and compromise. Americans have already traveled a fair part of it together. If the Supreme Court sweeps away race-based affirmative action in higher education, it won’t spell the doom of diversity. American institutions are committed to that end. Economic affirmative action will supply new means to achieve it.

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