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 have a question.

    Can some one specify all the minorities that can be admitted to colleges with lower grades than the Whites? Are Asians, South Eastern Indians included in this list? If not, then why not?

    Thanks

  2. Bill Powers: An Admissions Policy That Prizes Diversity

    History repeats itself Wednesday in an eerie but ironic way, as the University of Texas goes before the ­Supreme Court to defend its consideration of race in admissions. UT last did so 62 years ago, when Heman Sweatt, an African-American postal worker from Houston, challenged the university’s consideration of race.

    Sweatt, of course, had been denied admission because of his race. The university lost that case—but America won. UT became one of the first flagship universities in the former Confederacy to integrate, and Sweatt paved the way for the 1954 Brown v. Board of Education decision integrating all of public education and forever banishing the fiction of separate but equal.

    This time, UT finds itself back in court superficially for the same reason—considering race in admissions—but with just the opposite motivation. While our 1950 policy aimed to keep certain people out, our 2012 policy is aimed at permitting more of their grandchildren to enter.

  3. Race, mace. The white male is very unrepresented in this discussion. They should get extra points just because they have to suffer the abuse that women give.

  4. I’m Asian American and know it’s possible to be accepted at universities — even highly ranked ones — without affirmative action programs. None of my grandparents were formally educated, my father had a high school diploma, and my mother had none. Also, my family was on the lower rungs of the socioeconomic ladder. However, by focusing on academics and having strong parental encouragement, my sister and I were accepted at prestigious universities and earned undergraduate and graduate degrees. As far as I know, affirmative action wasn’t a factor in our acceptance. Grades, SAT scores, written essays, and interviews with alumni (in the case of one university) were the keys.

    I truly sympathize with minority families in distressed neighborhoods, families whose children don’t have many opportunities to escape their unfortunate circumstances. Nevertheless, there are ways out of such difficulties, and I believe it starts with strong parental encouragement for academic achievement. Many parents work two or more jobs, so this may be difficult, but it is doable. After all, some children do beat the odds and succeed, even without the benefit of affirmative action programs.

    I would consider and might support affirmative action programs that take into account an applicant’s socioeconomic background. However, I’m ambivalent about using race/ethnicity as a consideration.

  5. OT

    The Supreme Court sided with Big Brother:

    The Supreme Court closed a 6-year-old chapter Tuesday in the Electronic Frontier Foundation’s bid to hold the nation’s telecoms liable for allegedly providing the National Security Agency with backdoors to eavesdrop, without warrants, on Americans’ electronic communications in violation of federal law.

    The justices, without comment, declined to review a lower court’s December decision (.pdf) dismissing the EFF’s lawsuit challenging the NSA’s warrantless eavesdropping program.

    (Wired).

  6. @The Janitor ” race accounts for exactly 0.39% of the total admissions criteria.”

    Doesn’t that percentage undermine the argument that it is important to use race as an admissions criteria?

    I have to wonder: in how many cases was consideration of race a determining factor in admission of the candidate.

    If the number of cases where race was the determining factor is small then it would seem that the objectives of diversity have been largely achieved by other means.

    Others have suggested socioeconomic status as a more equitable and perhaps more desirable selection criteria. Are there any good studies that compare race and socioeconomic status as selection criteria and examined their results in regard to diversity?

    To me there does seem to be a divergence. On the one hand it is claimed that it is vital to use race as an admissions criteria. The, upon examination, it is claimed that race is a miniscule factor.

    I don’t think that reasonable people can have it both ways. If it is vital to use race as a criteria than it must be that race influence many admissions. On the other hand if it does not influence many admissions why should we keep race as a criteria.

    I look forward to thoughtful remarks.

  7. Gene, The troll isn’t even correct.. More females are graduating from high school with higher gpa’s. This actually gives a male an advantage in admissions. Have been told that by college counselors.

  8. So now it’s not racism, it’s a sexist conspiracy to keep men down. And you used the term “politically correct” as a bait/code word. A bit transparent tactically speaking, don’t you think? (That’s a rhetorical question.)

    Also, speaking of excellence, we used to have professional trolls here.

    That’s just . . . sad and pathetic.

  9. If affirmative action for those who have historically gotten the short end of stick is banned, then legacy seats should also be banned.

  10. Yawning, I am. I am getting sick to my stomach listening to this dribble. In Pursuit of Academic Excellence should be the goal. That’s just not the case these days. Holish (hole) or Polish (pole) should not be the issue. Politically correct is a term used to justify harassing and depriving a male, regardless of race.

  11. It may be a principled position that race should never be considered in any sort of academic or workplace evaluation. I am uncomfortable with considering race in admissions. But, as people upthread pointed out, in this particular case, there were black students with higher test scores than Fishers’s than did not make it. So it’s hard to see how she has a case.

    More generally I make somewhat of a distinction between affirmative action in academics, in which theoretically success is more or less under the student’s control and affirmative action in the workforce, in which there are a number of outside factors, including race, that may work negatively against the employee or business owner for that matter.

    Often what test scores are measuring aren’t just someone’s intelligence, preparation and diligence but also how much they may have internalized stereotypes of racial inferiority and damage from educational segregation. Affirmative action is just one tool, albeit an imperfect one, to deal with that.

    So I am not a huge defender of any affirmative action in academics but I AM a huge defender of affirmative action in the workplace.

  12. Yeah. Who knows, if we had more minority lawyers we might have more civil rights lawyers. We might be ahead of the game now. Who knows?

  13. @Josh In any event, I think even >1% consideration is unethical and immoral as a matter of principle, and its purported constitutionality in the context of “affirmative action” seems to fly in the face of all other 14th Amendment jurisprudence.

    I think you meant less than 1% (“”) but I got your point.

    This may surprise you but we’re actually not far apart on the notion that race should not be used in admissions or hiring decisions. There’s only one problem with taking that position against affirmative action only: racial preferences are alive an well in the U.S. In other words, everybody benefits from affirmative action, some people just call it everyday life.

    So if your position is to end all racial considerations then great. I applaud you. But you have to end all racial considerations, not just the ones that have been labeled “affirmative action.” No more racial preferences in granting loans. No more racial preferences in housing. No more racial preferences in business. No more racial preferences in hiring or promotion on the job, etc.

    Look, let’s be honest, we all know that these things happen every day, we just don’t hear about them because they’re not done through a tangible program called “affirmative action” that we can point to. Instead they’re done in private, sometimes behind closed doors. So if you’re against racial preferences as a matter of principle then that principle must extend to all facets of life in all instances.

  14. @Gene H. My experience in law school was this: there were some minority students who shouldn’t have been there, but conversely, there were just as many majority students who shouldn’t have been there either.

    Agreed. I had a similar experience in law school.

    The interesting (ironic?) thing about the issue of using race in law school admissions (and I realize this is off topic from the Fisher discussion) is that so much debate and argument and blood and sweat and tears and frustration and emphasis is placed on the issue of using race as merely one of several non-controlling factors in law school admissions, and at the end of the day only 2.7% of all lawyers are Black. Less than 3%. And it’s even less for Latinos. Take a look at the NALP Directory for any given Biglaw firm and you will typically see firms devoid of even a single partner of color. Similarly, even the largest firms in the biggest markets employ relatively few associates of color.

    And I want to be clear that I am not making a quotas argument here (completely disagree with quotas). Instead, I bring all of this up to simply ask a question of what are people really getting upset about? Are we saying that somehow 3% is too high? Is it strictly an argument about principle? Because when you consider that there are so very few Black and Latino lawyers in this country, it just seems like much ado about nothing. I could understand if Blacks and Latinos were overrepresented within the legal community but they’re not. Not even close. In fact, the opposite is clearly true.

    Having attended law school, my own personal theory as to why this is such a hotly debated topic within the law school context is because law school is an extremely competitive environment and any perceived advantage, whether real or not, is attacked by all those striving to reach the top.

  15. @Janitor, simply denying entitlement to a benefit does not immunize its denial from legal review. As for the difference between undergrad and law school, I only pointed to law school because I’m more familiar with the accessible data. As I’ve said, I think using race as a consideration ought to be unconstitutional in public school admissions outright, so law school was just an illustration of the principle. I grant you it MAY be a smaller problem in undergraduate institutions (though I harbor serious doubts in light of numbers like those pointed out by Professor Turley). In any event, I think even >1% consideration is unethical and immoral as a matter of principle, and its purported constitutionality in the context of “affirmative action” seems to fly in the face of all other 14th Amendment jurisprudence.

    @Swarth, I can’t say I agree with your conclusion, but it seem you favor of affirmative action more along the lines of a “past remediation” rationale. While I still don’t agree with that justification (and it was not before the Court today), I think it’s a more respectable position than “diversity,” which I see as amorphous, blatantly discriminatory, and (most disturbingly) unending.

    Thanks for the discussion, all.

  16. @Josh, thanks for the thoughtful responses. I am familiar with lawschoolnumbers and law school admissions in general and, to be sure, you make a strong argument in the law school context.

    However, Swarthmore Mom is correct that LSN are not directly applicable to this Univ. of Texas situation. As we all know, the predominant factor in law school admissions tends to be (i) undergraduate GPA and (ii) LSAT score. Very few law schools opt to take a holistic approach to admissions.

    Here, the Univ. of Texas did take a holisitc approach where grades and test cores only account for 50% of an applicant’s total admissions score, another 33% of the total score is determined by 2 essays, and the remaining 17% is determined by (1) leadership potential, (2) extracurricular activities, (3) honors and awards, (4) work experience, (5) community service, and (6) special circumstances. One of the 7 criteria that make up “special circumstances” can be race. So this is a very different animal from the law school setting.

    But even in the law school context we seem to be overlooking the fact that high grades and high test scores do not entitle anyone to a seat at the school of their choosing. The Law School Admissions Council stated in its amicus curiae brief in Grutter:

    “It has been the consistent position of LSAC that there is no entitlement to a seat in law school, regardless of one’s test scores and undergraduate grades.”

  17. “Barbara Jordan studied law at Boston University, saying later, “I realized that the best training available in an all-black instant university was not equal to the best training one developed as a white university student. Separate was not equal; it just wasn’t. No matter what kind of face you put on it or how many frills you attached to it, separate was not equal. I was doing sixteen years of remedial work in thinking.” Barbara Jordan was advised not to apply to Harvard Law School because she was a black woman from a southern segregated institution. Times have changed and for the better.

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