The End of Affirmative Action in Texas?

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Wednesday marks the latest – and possibly, final – chapter in affirmative action in American universities.  On Wednesday, the U.S. Supreme Court will hear oral arguments in Fisher v. University of Texas, No. 11-345, a challenge to affirmative action generally, and the admissions policies at the University of Texas specifically.  


Nine years ago, the Supreme Court upheld certain affirmative action policies in university admissions with the companion cases Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003), which arose from challenges to the admissions policies for the University of Michigan's law school and undergraduate programs, respectively.  Grutter and Gratz marked the latest in the Supreme Court's evolving jurisprudence concerning affirmative action in education since the landmark decision of Regents of the University of California v. Bakke, 438 U.S. 265 (1978) which, loosely speaking, banned the use of racial quotas in university admissions policies.

Nor is this the first brush with courts for the University of Texas over affirmative action or race-conscious admissions policies.  In 1950, the U.S. Supreme Court held that the Equal Protection Clause forbade denying admission to Heman Marion Sweatt, an African-American man, to the law school, on the basis of his race in Sweatt v. Painter, 339 U.S. 629 (1950).  Nearly 50 years after, in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996), the university saw another race-conscious admissions policy fall – this time for admitting applicants because of race – and later tailored its admissions policies to fit the construction recommended by the Grutter and Gratz opinions.  Prudent at the time, the changing makeup of the court has called into question the viability of the university's policies – and other like policies around the country – and could signal the demise of affirmative action.  See why below the jump.  AFFIRMATIVE ACTION DIES

Since the Grutter decision, Justice John Paul Stevens has retired, as has Justice Sandra Day O'Connor, taking with them two votes for affirmative action.  Justice Samuel Alito sits on the conservative wing of the bench, and Justice Anthony Kennedy is the swing vote, though, as the last term and, particularly, the health care decision this last spring, seem to indicate, he swings more to the right than not.  And the Court's chief, Chief Justice John Roberts, despite any celebrations of his newfound centrism or liberalism at the end of last term, remains an unapologetic, if shrewd and inscrutable conservative.  This is the same justice who, in a recent plurality opinion paring back affirmative action at the local level, wrote:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)

In short, the votes to strike down affirmative action in university admissions policies appear to be in place.  


Well, a lot, actually.  Minority enrollment will decrease, the intangible benefits to the private and public sectors of diversity in higher education will diminish, and minority communities will suffer as educational opportunity drops and income inequality rises.  

In an op-ed piece in the Los Angeles Times today, Lee Bollinger, formerly the president of the University of Michigan during the landmark affirmative action cases where he was a named defendant, wrote:

“Experience shows that underrepresented minority students in American colleges and universities would decline significantly and the costs would be substantial.

We know this based on the impact of a 1996 California ballot initiative barring any consideration of race in admissions policies in the state's public higher education system; two years later, the number of African American, Latino and Native American freshmen attending UCLA and UC Berkeley had fallen by more than 50%, and the rates at which underrepresented minority students applied, were admitted and enrolled had declined at every UC campus.”

He continued:

“And, if we are to succeed in encouraging our students to appreciate the complexity of the modern world, to question their inherited assumptions and to understand that wisdom is found frequently in unexpected places, then a variety of viewpoints must not only be present on our campuses but also given voice. While identifying the critical mass of students producing this kind of rich educational culture is, to be sure, a challenging and inexact science, it has been essential to the excellence of American higher education. By recognizing the importance of student body diversity and sanctioning the consideration of race in a holistic approach to admissions, the Grutter decision authorized universities to apply their unique expertise in making this judgment.

In this era of rising economic inequality, arguments that colleges and universities should focus exclusively on income diversity have understandable appeal. We also are firmly committed to ensuring that the opportunity to pursue a college education is open to all regardless of family income. But the ability of this approach alone to produce a truly diverse student body is not supported, however, either by experience or by demographic reality. The right path forward, and the one embraced by Grutter, is to preserve the consideration of race – along with income diversity and many other factors – in the admissions process.”


Numbers support Bollinger's argument and its corollaries.  A 2011 article by Steven Strauss, former Managing Director of the Center for Economic Transformation at the New York City Economic Development Corporation, ties education and income.  Drawing from figures published by the U.S. Census Bureau and the Bureau of Labor Statistics (BLS), Strauss shows that in 2009, the mean earnings for a person with a Bachelor's degree were $57,000, while the mean earnings for someone with only a high school diploma stood at $31,000.  (Mean earnings for a person with a professional degree were $128,000).  Concerns over unrepresented median figures notwithstanding, the numbers are compelling.  Moreover, unemployment rates in 2011 for those with less than a high school education were at 14.3%, while those with a college degree or more saw unemployment rates of 4.3%.

Further, in recent years, and especially since the Great Recession, the case for ensuring minority education could not be stronger.  A July 2011 Washington Post article highlighted the growing income disparity between whites and minorities:

“Between 2005 and 2009, the median net worth of Hispanic households dropped by 66 percent and that of black households fell by 53 percent, according to the report. In contrast, the median net worth of white households dropped by only 16 percent.

The median net worth of a white family now stands at 20 times that of a black family and 18 times that of a Hispanic family – roughly twice the gap that existed before the recession and the biggest gap since data began being collected in 1984.”

The Post article was based on a report issued by the Pew Research Center. The full report may be read here.

While the progress in putting Americans from different backgrounds on “equal footing” cannot be ignored, the affirmative action instrumental in accomplishing these gains cannot be dismantled now; indeed, the economic and educational realities of too many Americans caution against it.  We can only hope that a majority of the nine justices are similarly cautioned.


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  1. A bunch of complicated issues
    There are basically three arguments for affirmative action, and they often get mixed up.

    1) The personal fairness argument: Consider race to make up for the disadvantages that minority applicants have in getting to the point of applying for college. In other words, “A poor black kid from an inner city school won't have the same academic opportunities as a rich white kid from the suburbs, so let's weigh race to make up for it.”  The trouble with this argument is that there are plenty of poor white kids from rotten schools, and there are some very privileged minority kids who don't need or deserve bonus points for race. My understanding is that the courts have been very skeptical about this argument. You can certainly consider personal hardships in admissions, but you can't consider race as a proxy for hardship. I'd be very surprised if UT's admission policy survives on these grounds.

    2) Diversity on campus.  It's good for everybody to have a diverse student body, so that people of all races and ethnic backgrounds get to learn in a mixed environment, and to break out of the cocoon that they may have grown up in. The courts have agreed, up to a point. If affirmative action survives, it will probably be on these grounds.

    The trouble is that having a diverse student body doesn't mean having same percentages as the population at large, or even coming close. It just means having enough diversity to provide that broad experience. You can make a reasonable case that the 10% rule already gives UT that critical level of diversity, and that any additional affirmative action is unnecessary.

    3) Breaking down structural inequalities. It's good for society to have more Black doctors and engineers, and more Hispanic lawyers and scientists, and more successful minority role models in every field where minorities have traditionally been shut out, and where there's a lingering old-boy network. (That's a LOT of fields!) We need more diversity in the workplace, and not just in the classroom, and we get that by making a special effort to provide high quality education to minority applicants.

    To me, that's an extremely strong moral argument for affirmative action. Racism is far from dead, and we need to keep attacking it.

    The trouble is that this sort of “good for society” argument doesn't have much of a Constitutional basis. The Constitution mostly protects individual rights, and past rulings against racism (like Brown v. Board of Education and Sweatt v. Painter) have been based on the rights of individual applicants to be treated equally. As much as I would like to see affirmative action upheld for the good of society, I don't think that it will happen.

    Let's hope I'm wrong!  

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