Supreme Court Takes Up Affirmative Action In Higher Education

This week the Supreme Court will find itself facing yet again the question of the use of race in higher education. It is question that the Court failed to definitively answer in 1978 and then again in 2003 and will now try again in 2012. Fisher v. University of Texas Austin however has the makings of a decision that could not only answer the question with finality but effectively bar the use of race in admissions in higher education. While the Court has repeatedly allowed the limited use of race for the purposes of achieving diversity in classes, the record of these programs suggests that this one factor is difficult to confine and tends to overwhelm other considerations. The Court now appears to have the votes to adopt a bright-line rule that ends decades of experimentation with this controversial factor.

While many defend race-conscious admissions in terms of the need for affirmative action to correct historic discrimination, the Supreme Court barred such affirmative action in 1978 in Regents of the University of California v. Bakke. Justice Lewis Powell allowed for only a limited use of race for the purpose of achieving “diversity” in classes. This exception however soon swallowed the rule as schools fought to maintain levels of minority students as a diversity rather than an affirmative action program. Many academics privately admit that the real purpose of these programs remains the original affirmative action rationale to ensure greater numbers of minorities in higher education.

At George Washington Law School, we spend a considerable amount of money to recruit top minority students without having the type of score differential reports in the Texas case. This takes money and time but it is well worth it. I happen to believe strongly in the educational value of diversity. I am convinced that my classes are greatly improved from an educational perspective by a more racially diverse class of students. I also see similar benefits from diversity in religion and socio-economic backgrounds. Moreover, race is not always a good criteria for bringing in different social and cultural experiences since many minority students come from elite schools and backgrounds.

The main concern however remains the natural gravitation of diversity programs into de facto quota systems. These cases reflect a tendency to weigh race more and more heavily to achieve greater numbers of minority students rather than spend the money and time to attract more competitive minority students.

The gap in scores among students at Texas will be at the heart of this case. The Texas data on the freshmen (not admitted under the Top Ten Percent Law) show that Asian students had a mean SAT score of 467 points and white students a mean of 390 points above the mean for black students (on a maximum score of 2400). This meant that Asian students scored in the 93rd percentile and whites in the 80th percentile nationally while black students scored in the 52nd percentile. These scores are a verboten subject among academics since they highlight the unfairness to students rejected with much higher scores due to their race.

With race-conscious systems, the concern is that white students are denied any ability to compete on this criteria for admission and must overcome the weight given to it with even higher scores. The discomfort with race-based criteria in educational admissions is reflected on the Court itself. In Grutter v. Bollinger, the Court divided 5-4 on the question in upholding the admissions criteria for Michigan Law School. However, even the author of the 2003 majority opinion, Associate Justice Sandra Day O’Connor, stated that she did not believe the use of race would be acceptable for more than a couple decades more. The Court ruled that it “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by other justices (and others) since the constitutionality of affirmative action should not have an expiration date like one-percent milk. Yet, even under O’Connor’s view, affirmative action would only have an expected life of roughly 15 more years of constitutionality.

What is interesting is that the University of Texas-Austin achieved remarkable levels of minority students under the earlier race-neutral system of admissions. In the year before the school changed to a race-conscious system, Hispanic and African American students constituted a total 21.4% of the entering freshman class. Asian students made up another roughly 18% of the class. This impressive success was achieved in large part by the Texas legislature enacting the 10% Law, which required the University of Texas to admit all Texas high school seniors ranking in the top 10% of their classes. That law not only achieved racial diversity but geographic and economic diversity at the university. For those of us uneasy with the use of race-conscious criteria, that record was encouraging and suggested that it is indeed possible to achieve considerable diversity without the use of race.

However, the university said that this roughly 40% minority rate was not sufficient because it wanted to see a greater percentage in individual programs and classes – requiring an even higher percentage. The school turned back to race-conscious admissions and the federal appellate court upheld the change. The race conscious rules are also likely to result in further discrimination on the basis of race. For example, while Asian Americans are indeed a minority and presumably would bring diversity to a class, they outperform blacks and Hispanics in scores by a significant degree. Their scores are also higher than white students. Thus, there is a growing trend to count the race of Asian students against their admission at some universities. Thus, if you are white or Asian, your performance in school and tests may be effectively negated by the color of your skin.

Under the current system, a student’s race is displayed on the front of their application. Significant numbers of minorities are still admitted under the Top 10 Percent law, but minority students are then given a preference if they do not make that cut based on their race. The result has been to increase minority admissions to over 50 percent of the entering class at UT. The goal and result are the same as the pre-Bakke affirmative action programs. Indeed, in a statement that likely had his lawyers wincing, the UT’s President proudly announced that his incoming classes achievement of 52 percent minority students would finally “reflect[] the changing demographics of the state” – an apparent reference to the affirmative action rationale.

Universities were given the opportunity to show how race can be used as a limited factor to achieve diversity. The University of Texas system may now offer a majority of the Court the perfect record for achieving what dissenters failed to achieve by one vote in 1978 and 2003. It will be seen by some members as evidence that race-conscious diversity programs tend to gravitate toward quota systems or affirmative action programs. If a majority has finally solidified on the Court, schools would then have to seek diversity (as many law schools do) through scholarships and targeted recruitment. Fisher would become a tale of an opportunity lost and perhaps the start of a new chapter in the struggle of diversity in education.

Jonathan Turley

72 thoughts on “Supreme Court Takes Up Affirmative Action In Higher Education”

  1. I like to begin with fundamentals, such as, “If the question relates to the importance of diversity in higher education, mustn’t we first resolve if this proposition is true: diversity is important to higher education?” If so, is it true only with respect to higher education, or is that qualifier superfluous: diversity is important to education, higher, lower or any?

    Typically, when diversity is discussed in connection with student body populations, the concentration falls on the notion diversity. This concentration is misplaced. If the discussion were the importance of molasses in the manufacture of bread, the manifest fact that bread can easily be manufactured without molasses renders the question trivial, at best, if not moot in the fact that molasses is not at all important to making bread, qua bread, but only (if at all) in making some particular kind of bread.

    If the importance of molasses in making bread can be assessed, at least fundamentally, by asking if bread can be made without molasses, the fundamental question regarding diversity in student body populations in education must be, “Are educated people possible in the absence of exposure to diverse student bodies?”.

    Intuitively, one would easily incline to the belief that (for example) Poe was an educated person, and he became such without whatever salubrious advantage there might have been to him in acquiring his education among a diverse student population. One might say, of course, the Poe might have been better educated among a diverse student population, but can one say that he was not well educated even in the want thereof?

    We are now arrived at a discussion of education, itself, what it is and what renders an education better or worse. Before we can ask these questions, however, there are more fundamental questions still we must ask, such as, is it even correct to speak of “an education,” or is the indefinite article a red herring, leading us to attribute another false quality to education: that one can “get” or “have” one. In other words, is education a thing – whether or not in extension, such as dreams or apples – that one may give, get or have; or, is education something else, perhaps comparable to a state of being, as being “good-natured” is a state of being, or “patient”.

    …and so the analysis proceeds, with each answer a question, “Is this the most fundamental description of the issue at hand that is reachable?”.

    Already, I believe there has been demonstrated ample room to doubt that a student body marked by diversity is the more likely to produce a better educated person, because that student body was diverse, than Poe, who achieved his degree of education in the absence of a diverse student population.

    Upon this dubious proposition, however (that student body diversity is “important” to education), rests the inertia to jettison the fundamental notion of the equality of man as man, weighting some men (and/or women) more important to the notion of education for what we can say about them, with no a priori necessity that what may be said of them must necessarily be of any influence (much less a definitively positive influence) on others.

    It is, I believe, a game hardly worth the candle, and certainly not worth the loss of presumptive equality based upon one’s humanity, alone.

  2. The context of the UTexas admissions program is one of countering deeply entrenched history and attitudes. It’s kind of amusing to read “ideal world” arguments that ignore or elide this historical context considering that earlier this very year, it took the public scrutiny of a national political campaign to finally convince Guv. Perry (who lives just a few blocks from campus) that he might want to feign embarrassment at not flipping over the rock marking the entrance to his family huntin lodge with the word “N!ggerhead” painted on it.

  3. gbk:

    school systems, at least in Virginia, are funded by the state and local areas but they do receive money from the federal government. So I dont think this is a funding issue. Look at DC schools, they receive about the same amount of money per student as the county I live in, our schools are far superior to the ones in DC.

    My wife is a teacher and I have 2 children who attended public schools. In fact my wife teaches children with substance abuse and behavior problems and has for about 8 years prior to that she was a classroom teacher. So while I am not an expert, I have some knowledge of the school system [at least where I live].

    The biggest problem, as I see it, is the lack of local control of the schools. Everything is mandated from the state level and now with a new program, curriculum and testing will come from the federal government. This program is nationwide and does not sound like a good program. It appears to take away control from the state and local level, teachers will almost be irrelevant. States are being forced into this by threat of losing their federal funds. Most have fallen in lockstep with the program.

    My wife says that no child left behind [a Bush program] is an abysmal failure, totally centralizing education will all but kill public education in the US.

    Control has to be given back to teachers in the classroom and we have to have separate tracks for children who are not academically inclined, we used to do this. Where I grew up we had some great technical high schools which taught sought after skills like machining, auto repair, carpentry [the real kind], welding and other well paid vocations.

    Money may have been the problem but it isnt anymore.

  4. Affirmative Action At Supreme Court: University Of Texas Program Had A Bad Day
    Posted: 10/10/2012

    WASHINGTON — Chief Justice John Roberts may have switched his vote to join the Supreme Court’s liberals in last term’s blockbuster health care case, but on Wednesday morning he proved that he remains a rock-ribbed conservative when it comes to affirmative action.

    With retired Justice Sandra Day O’Connor looking on from the audience, Roberts and his fellow conservative justices savaged the rationale she put forward in her landmark 2003 opinion upholding race-conscious admissions practices. Although the conservatives did not have the numbers to prevail nine years ago, they may very well have them in the current challenge to the University of Texas at Austin’s affirmative action program.

    The 2003 decision, Grutter v. Bollinger, upheld by a 5-4 vote the ability of university admissions officers to consider an applicant’s race as one factor among many in their efforts to achieve a critical mass of diversity in the entering class.

    The “critical mass” concept inspired the most contempt from the Supreme Court’s conservatives during oral argument Wednesday morning in Fisher v. University of Texas. Former Solicitor General Gregory Garre, representing the university and relying upon the Grutter decision’s own language, said that critical mass is determined when the “university reaches an environment in which members of underrepresented minorities — African Americans and Hispanics — do not feel like spokespersons for their race.”

    To this, Roberts acidly asked Garre, “So, what, you conduct a survey and ask students if they feel racially isolated, and that’s the basis for our constitutional determination?”

    With Justice Samuel Alito’s replacement of O’Connor in 2006, there was no question that the balance of power on the court had shifted toward the conservatives on matters of race. The University of Texas case is their first opportunity to revisit affirmative action in higher education since 2003.

  5. It always amazes me that the issue of affirmative action is only discussed within the context of university admission. I feel the playing field should be leveled at the much earlier age of kindergarten with the understanding that K-12 funding resources are mostly defined by the property and business taxes of the district that the school resides in.

    I once assumed that the disparity of funding offered through any local tax base was offset by funds from a federal level so that K-12 schools were approaching a point of parity. There was no reason for me to believe this self-imposed illusion, I had just assumed it was true through my own ignorance.

    Then I read Jonathan Kozol’s book, “Savage Inequalities: Children in America’s Schools,” and realized that my assumptions were erroneous.

    Everyone knows of the Brown v. Board of Education ruling of 1954, (347 U.S. 483) which stated, in simple paraphrase, that separate schools for white and black children was unconstitutional. Yet, rarely mentioned is the 1973 ruling given in San Antonio Independent School District v. Rodriguez, (411 U.S. 1) whereby SCOTUS stated that:

    “[A] school-financing system based on local property taxes was not an unconstitutional violation of the Fourteenth Amendment’s equal protection clause. The majority opinion stated that the appellees did not sufficiently prove that education is a fundamental right, that textually existed within the US Constitution, and could thereby (through the 14th Amendment to the Constitution), be applied to the several States. The Court also found that the financing system was not subject to strict scrutiny.”

    I only became aware of the huge funding disparity between various school districts through Kozol’s book (as I do not have any children). The facts of the matter in San Antonio Independent School District v. Rodriguez (according to Kozol) are that there were two schools, separated only by a road–one with a 96 percent minority population (whatever that means) which received $37.00 per student while the predominately white school was receiving $543.00 per student (1968 dollar amounts).

    My illusory bubble of feel-good offered by Brown v. Board of Education and my assumption of equitable funding was called into question with this new (to me) information. According to the US Department Of Education’s website:

    “In 1990-91, the federal share of total K-12 spending in the United States was just 5.7 percent. Since that time, it has risen by more than one-third and is now 8.3 percent of the total.”

    In other words, K-12 funding from any individual’s perspective is still based on where one is born, where one lives, and in many cases where one will die.

    It seems to me that the arguments surrounding affirmative action need to occur at a much earlier stage in the educational process as the funding of K-12 education is predicated on a local tax base which obviously leads, within our culture, to disparity based on the antiquated concept of race.

  6. Everyone here has valid points from different perspectives. But, this whole mess is a cluster and it proves that if a person wants something enough, such in this case a higher education from a good school, you have to resort to one’s own devices to obtain it.

    What is a young person to do? A new adult, and faced with the possiblity of some bureaucrat wonk dictating whether or not they can enter a college based on whatever arbitrary stupid arse rule they come up with because the wind was blowing South, or whatever it is they conjure up for the day, the prospective student just can’t give up.

    The young man / woman needs to make it happen on their own because of assinine rules such as these quotas or whatever the heck a person wants to call it. They cannot just assume the school will act in the students’ interests, the best they can do is to be resolute and do whatever it takes to succeed. Sad that it has to be this way, but if you want something enough you can do well with effort and resolve.

    It would be nice to see that all students will only need to focus on is being the best student / citizen they can and not have to worry that this bureaucratic nonsense forestalling their successes in life.

  7. BFM,

    The reason I like the UT policy is that by accepting the top 10%, minorities in the top 10% get in regardless of race, gender, or economic status.

    To better improve the chances for all to get the college education they want is to improve the quality of all schools, starting with pre-school. I also like what Libya had until we freed them for democracy: free education all the way through for everyone.

    1. @bettykath

      I certainly agree with universal education. I think that as long as a student is making good progress it is to society’s benefit to assure the students access to education.

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