During a heated election year, the Supreme Court has decided to take on another hot-button issue: affirmative action. Abigail Fisher challenged the 2003 case Gratz v. Bollinger, claiming that she was unconstitutionally denied admission to the University of Texas because she is white. Because there are a higher proportion of conservative justices than in 2003, and liberal Elena Kagan is recusing herself, it's likely the court will rule against the use of race-based affirmative action. What hangs in the balance? Both the amount and type of diversity at our colleges and universities.
Here's the background: Barred from using race in admissions by the Hopwood v. Texas ruling in 1996, the University of Texas responded by creating two paths to entrance: one that used class-based affirmative action for all races, and one that automatically admitted Texas graduates who were in the top 10 percent of their high school classes. When the 2003 case was decided, the university added race to the considerations. The "top 10 percent" program accounts for 81 percent of those admitted; Abigail Fisher is suing because the university used race as a criteria for the remaining 19 percent of admission seats. So even if the court overturned that part of the admissions system, it would still leave the “top 10” program in place, which may become a model for the rest of the country. Depending on the scope of the Supreme Court decision, it could transform the terms of the discussion over affirmative action from race to class.
This isn't necessarily a bad thing—in theory. Richard Kahlenberg, associate director of the progressive Century Foundation, says states that have already banned affirmative action "find other ways to get a healthy racial and economic mix," and that considering class instead of race "produce[s] a fair amount of racial and ethnic diversity indirectly." Take California: After the state banned affirmative action in 1996, public universities began to use a similar "top 10" program as UT. The ruling initially lowered the numbers of minorities—the proportion of black and Latino students dropped from 18 to 15 percent in 1998. But by 2008, that proportion had risen to 24 percent.
Some experts, including progressives like Kahlenberg, have argued that Fisher v. Texas might offer a chance to revamp a broken system. At this point, elite schools aggressively recruit minority students from, well, other elite schools. Most non-white kids of color at the best universities are middle- or upper-middle class, and those who aren't got help far earlier than high school to ensure at least a middle-class education. Programs like Prep for Prep, which start at the elementary school level, are doing affirmative action’s dirty work far before anybody makes it to high school. That means affirmative action at the college level isn't doing much to help lower-income students attend top-tier schools; a recent study found that 86 percent of black students at selective colleges are middle or upper-middle class. Some don't come from American schools at all; first- and second-generation black immigrants, most of them wealthy, comprise 41 percent of all black students at Ivy League schools. Economic diversity has long eluded elite schools, so creating a system based on class would ensure that these schools become ethnically and economically diverse.
The problem is that the most selective schools, by definition, can't simply adopt a "top 10" program. Even advocates of economic affirmative action like Kahlenberg admit that "at the most elite colleges, the story is a little bit less encouraging." At UCLA and UC Berkeley, the most choosy UC schools, the proportion of black and Latino freshmen dropped from 23 percent in 1997 to 14 percent in 1998 after race-based affirmative action was abolished. That number has rebounded over time, but has never fully recovered, and the campuses have not chosen to create any allowable affirmative action policies to combat that issue. And because private universities—most of which use race-based affirmative action in admissions decisions—are beholden to federal civil rights law, they would be subject to a ban as well. A Supreme Court decision cracking down on race-based admissions policies may push larger state schools to lift up lower-income students, but it could also give prestigious colleges an excuse to continue slacking off on creating any diversity.
Besides, affirmative action isn't just about lifting up the poor. It isn't just about providing reparations for slavery and segregation, especially now that Latinos are the fastest-growing minority group in the country, and have long outpaced the black population. It's also about creating a culturally diverse educational environment that benefits everybody. Socioeconomic affirmative action still doesn't address the principle Sandra Day O'Conner expressed in 2003: that "student body diversity is a compelling state interest that can justify the use of race in university admissions," and that affirmative action is good for nonminorities, too. Just because minority students at Harvard and Yale are richer than the average person doesn't mean they're not helping create a more diverse learning environment in other ways.
Economic and racial diversity isn't a zero-sum game—both factors should be considered in admissions, for different (albeit related) reasons. If Fisher v. University of Texas ends up abolishing race-based affirmative action, we'll discover just how much colleges and universities care about genuine diversity. We may not like the answer.