Feb. 22 (Bloomberg) -- Colleges may soon have to overhaul decades-old efforts to promote racial diversity after the U.S. Supreme Court agreed to reconsider the constitutionality of affirmative action in admissions.
In accepting an appeal from a rejected white applicant to the University of Texas at Austin yesterday, the justices signaled interest in rolling back the type of race-based admissions the high court approved in 2003.
The 2003 ruling, which upheld a policy at the University of Michigan Law School, gave public and private schools a road map for setting up valid affirmative action programs -- and suggested the high court wouldn’t revisit the issue for 25 years. Colleges, which set up their rules under the assumption that the legal issue was settled, would have to revamp their policies if the court now outlaws race-based admissions, said Lee Bollinger, the president of Columbia University in New York.
“This case has the potential to cut across all of higher education,” said Bollinger, who as president of the University of Michigan in the late 1990s and early 2000s led the defense of its affirmative action programs. The court’s surprising decision to hear the case set off “a lot of consternation” among colleges, he said.
Most of the nation’s selective colleges and universities have adopted affirmative action. The Supreme Court has ruled on cases involving public universities, and private colleges are bound by its decisions as well because they are subject to provisions of federal civil-rights law.
The justices will hear the latest case -- in which student Abigail Noel Fisher said she suffered discrimination when she applied to Texas -- during the nine-month term that starts in October, potentially with arguments before the November presidential election.
Universities have had the court’s blessing for affirmative action since the 1978 Regents of the University of California v. Bakke decision gave race-conscious admissions a limited endorsement.
The 2003 ruling, Grutter v. Bollinger, said admissions officers can consider race as part of a “holistic” review of the applicant’s file. On the same day, the justices struck down a separate affirmative action program they said was too mechanistic. Writing for the court, Justice Sandra Day O’Connor said the court “expects that 25 years from now, the use of racial preferences will no longer be necessary.”
Changed Court Composition
The court’s changed composition since 2003 now makes new limits on affirmative action all but certain, with the central issue being how far the court will go. O’Connor has retired, leaving Justice Anthony Kennedy as the court’s swing vote on race issues.
Kennedy dissented in the 2003 case and has said schools at all levels should focus on race-neutral steps to achieve diversity.
Those might include affirmative action programs based on socio-economic status, rather than race. Some universities have already started using those methods, said Richard Kahlenberg, a senior fellow at the Century Foundation in Washington who has written books on education and taught constitutional law.
“The logic behind this is that economic obstacles are even more substantial than racial obstacles to a student’s doing well academically,” Kahlenberg said in an interview. At the same time, “there’s an overlap between race and class in our society, so anytime a university uses economic disadvantage, they will indirectly be admitting a lot of students of color.”
A Century Foundation study in 2004 found that class-based affirmative action could almost, though not completely, replicate the breakdowns from traditional race-based admissions programs.
Looking at the 146 most selective colleges and universities, the study concluded that blacks and Latinos would account for 4 percent of the student body if admissions were based solely on grades and test scores. Race-based affirmative action increased that number to 12 percent. Had it been used instead, socio-economic affirmative action would have produced a 10 percent figure.
If the Supreme Court forbids direct consideration of race, colleges will look more at students’ socio-economic backgrounds, according to Bruce Poch, the former dean of admission at Pomona College in Claremont, California.
As many already do today, admissions officers would then consider where students live, their parents’ occupations, the schools they attend and whether they are the first in their families to get a degree, Poch said.
“It’s not a perfect proxy,” said Poch, now a higher-education consultant. “Something would be lost. America has always been a place where race has been part of one’s experience. It’s kind of funny to pretend that it isn’t.”
State schools could also adopt an approach similar to Texas’s Top 10 Percent Law, which guarantees admission to state residents who graduate in the top decile of their high school class. The 1997 law was enacted in part to boost minority admissions at state universities.
The Texas system is in court because a second part of its admissions policy allows direct consideration of race. Fisher, the rejected student, points in her appeal to statistics indicating that the Top 10 Percent Law was helping ensure a significant number of minority students even without explicit consideration of race.
In 2004, the last year race wasn’t considered, the entering freshman class at the university was 21.4 percent black and Hispanic. The freshman class that entered in the fall of 2011 was 26.3 percent black and Hispanic, according to the university’s website.
A federal appeals court in New Orleans upheld the Texas system.
Fisher says the high court doesn’t necessarily have to overturn the Grutter ruling to strike down the Texas system. At the same time, her lawyers told the court it might need to reconsider the 2003 ruling “to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”
The fresh look at affirmative action arrives as the U.S. becomes an increasingly diverse society, with fast-growing Latino and Asian populations -- and a black president who himself attended elite universities. Americans of other races will outnumber whites by 2042, the Census Bureau projects.
The Supreme Court’s consideration also follows intensifying debate about whether Asian-Americans are held to a higher standard in admissions, requiring stronger test scores and grades to gain entry to selective colleges. The U.S. Education Department is investigating such allegations at Princeton University, which says it doesn’t discriminate. The department dropped an investigation of Harvard University this month after an Asian-American student withdrew a complaint.
A growing number of states are outlawing affirmative action in college admissions, suggesting the court will be taking on the subject amid growing distaste with the practice, said Roger Clegg, president and general counsel of the Center for Equal Opportunity, a Falls Church, Virginia, nonprofit opposed to racial preferences.
Arizona, California, Michigan, Nebraska and Washington eliminated race-based affirmative action in college admissions through ballot initiatives, according to his organization’s tally. The New Hampshire legislature passed a law banning racial preferences that took effect this year.
“In a country with so many different racial and ethnic groups, it becomes more and more untenable for institutions to be sorting people based on their skin color and what countries their ancestors come from,” Clegg said in an interview.
Supporters of affirmative action say the experiences in those states show the continuing need for the programs.
In California, which outlawed race-based admissions at state schools through a 1996 ballot initiative, black enrollment declined throughout the system, falling to 3 percent at the state’s public law schools within five years, Bollinger said. Black enrollment has since rebounded, though not to pre-1996 levels, affirmative action advocates said.
“We are still living with the tragic legacy of slavery and Jim Crow,” Bollinger said. “That’s a very important fact that we have to address.”
At Texas, the news of the Supreme Court review was greeted with a more muted reaction among students, said Natalie Butler, the university’s student body president and a government and communications-studies major from Tempe, Arizona. Race relations are not tense at the university, she said.
“We do a really good job on diversity, but we could always do better,” she said in an interview