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Students hoping for a repeal of California's ban on affirmative action in college admissions protest outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Feb. 13. The Supreme Court will decide an affirmative action case next fall that could affect college admissions policies across the country.
Students hoping for a repeal of California's ban on affirmative action in college admissions protest outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Feb. 13. The Supreme Court will decide an affirmative action case next fall that could affect college admissions policies across the country. Justin Sullivan/Getty Images
College and university presidents are wringing their hands over the U.S. Supreme Court's decision to revisit the issue of affirmative action next fall. Critics of racial preferences are thrilled because the court could significantly restrict the use of race in admissions, but proponents of affirmative action say this would be a huge setback for institutions struggling to diversify their student body.
Their biggest fear? That when the court decides Fisher v. The University of Texas at Austin, colleges will have to once and for all remove race and ethnicity from consideration in their admission policies.
"It is very alarming," says Marvin Krislov, the president of Oberlin College in Ohio. "We are very worried that an adverse decision could impair the ability to enroll a diverse student body, and I suspect that that would be felt at other selective colleges and universities."
Richard Kahlenberg, author of The Remedy: Class, Race and Affirmative Action, disagrees that the consequences would be so dramatic. "The defenders of race-based affirmative action are very principled, but I think they've exaggerated the claims about what will happen," he says.
He says a ban on affirmative action would force colleges to do what they should have done a long time ago — replace race with class.
The term "affirmative action" was popularized in political conversation in an executive order from President John F. Kennedy in 1961. The actual language specified that "the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."
Four years later, Lyndon B. Johnson pinned down the specifics with another executive order, which required companies above a certain size to have a plan to increase diversity in the workplace, if necessary. That order was amended in 1967 by another order to include "sex" in the list of protected categories, extending affirmative action to women.
— Natalie Jones
Sources: National Archives, The New York Times
"Right now, universities don't do that. They don't consider socioeconomic status in admissions even though they say they do," Kahlenberg says. "At selective colleges, you are 25 times as likely to run into a rich kid as a poor kid."
That's not because colleges don't recruit and enroll poor kids, says Krislov; they do.
"But it is not a substitute for considering race and ethnicity insofar as it affects an individual applicant and the qualities he or she brings to a student body," Krislov says.
Kahlenberg disagrees. He says there are "race-neutral" policies that are working just fine in states like Florida, Washington and California. And he points out that the University of Texas at Austin, the very institution that's now having to defend its use of race in its undergraduate admissions, also has a very successful race-neutral policy.
"They admit students who are in the top 10 percent of every high school, and they also provide a leg up to socioeconomically disadvantaged students," Kahlenberg says.
Of course, that happened only after the university was ordered in 1996 to remove race from its admissions decisions.
"Through these race-neutral means, they were able to produce a class that was more racially diverse than in the days when Texas used race," Kahlenberg says.
For nine years, the university relied exclusively on race-neutral policies. Then it put race back into the mix. In 2005, it decided that 1 out of every 5 students who applied would be admitted based on things like teacher recommendations, talent, test scores, grades and race.
That's why Abigail Fisher, a white applicant, sued the university in 2008. She was not in the top 10 percent of her high school graduating class. But the real reason she was rejected, she argued, was because she's white. This is the case the Supreme Court will take up in October.
What's frustrating about all this for colleges is that they thought the constitutionality of affirmative action in college admissions had been settled. In 2003, the court upheld the University of Michigan law school's use of race.
"So colleges and universities have been relying on that guidance from the Supreme Court," Krislov says. "It's been affirmed by the Department of Education on multiple, multiple occasions."
But come October, there's a good chance institutions will, once again, have to rethink entirely what role, if any, race will play in their admissions policies.