Supreme Court Might Erase Race from Affirmative Action

Told by the Supreme Court in 2013 to review and tighten its admissions policies of racial preferences, the University of Texas took no action, and accordingly was hauled back before the justices in early December. In a succession of cases the Court has forbade using quotas for admitting minority groups and has allowed using race narrowly and only as one of the criteria to arrive at the diversity needed for students to be exposed to and learn from others unlike themselves.

This time, however, the justices seemed skeptical of whether giving preferential treatment to an applicant just because he or she is black or indigenous-American — the principal application of affirmative action — is a good idea. That has evidently come about because the "mismatch theory" in education has made inroads to the debate. It holds that the deeper the gap between a school's admission standards and the allowances made for race or some disadvantage in accepting students, the greater the likelihood the student will do poorly, become discouraged, and be harmed by failure. The student would do better by attending a lesser institution with academic requirements more attuned to his or her preparedness.

When Justice Scalia ventured into this terrain with, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school — a slower-track school where they do well”, it was defensible because in deciding cases a justice must be free to posit challenges to what is being argued without caring a damn for "political correctness". But Scalia being Scalia, he immediately tossed professionalism aside by continuing with, “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible”. Scalia n the first person stepped in to take the place of "those who contend", revealing his premeditated bias going in.

There are also those who contend the opposite, such as in one of the amicus briefs from the "dozens of education organizations", military officers and major corporations in support of UT, the University of Texas. It said, "minority students who benefit from affirmative action get higher grades at the institutions they attend, leave school at lower rates than others, and are generally more satisfied in higher education".

If that seems overly rosy, there is a different advantage to taking the tougher road in the more demanding college — the reputation for that accomplishment and the caché of that school's name on one's resumé that a graduate can carry through life compared to graduating from a lesser university. The justices should know that — three of them went to Princeton, one to Harvard and all to Yale or Harvard for their law degerees.

Justice Kennedy seemed to yearn for more data about UT's experience, possibly feeling put upon to have to be the one who will solely decide this case, given that the right and left wings are show signs of being settled in their views. (Chief Justice John Roberts asked, "What unique perspective does a minority student bring to a physics class?"). There is speculation that the protests at colleges might persuade Kennedy that the diversity sought by affirmative action has only resulted in pitched battles between warring camps on campuses. Much of the demonstrations are by blacks attempting to suppress free speech and who make demands of their universities such as insisting that courses in black history be mandatory for all students. It's human nature that the justices may be looking at these goings on — reflecting on how many of those students have their tuitions paid for by need-blind policies, yet are witless of the opportunity granted them — and saying to themselves about affirmative action, "what's the point, why bother"?

The universities, anxious to lure students that come bearing generous government loans, abet the divisiveness by accommodating every group's wishes, setting up "safe" spaces where "affinity groups" can meet, with the result that students cluster among those with shared backgrounds and lock onto views that are impervious to the awakening of different knowledge and clashing opinions that diversity was supposed to deliver. Student bodies may be diverse but they do not blend. "A given college may be a heterogeneous archipelago. But most of its students spend the bulk of their time on one of many homogeneous islands", as Frank Bruni of The New York Times aptly described it.

The shift away from race as a permissible criterion is toward giving a leg up to those in lower socioeconomic strata as the alternative. UT policies have the effect of doing that to some degree. By state law, the university must take the top 10% of those who apply from Texas high schools, which fills about 75% of the available slots. (It is in the remaining 25% of admissions that race factors as a qualifier and is being challenged by the Court.) The 10% method sweeps in African-Americans from high schools in black neighborhoods, often satisfying both socioeconomic and racial goals. But in sharp rebuke, Justice Ginsburg made the point that for the top-10 program to work, to produce a good socioeconomic mix, means it must be

“driven by one thing only, and that thing is race; it’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education"

because that student has a better chance of making the top 10% by staying in the worst schools.

How well would socioeconomic selecting do in pulling requisite numbers of ethnic minorities into college as a by-product? Sigal Alon, an Israeli at Tel Aviv University, using U.S. data from the Beginning Postsecondary Students Longitudinal Study, says, not well.

"Class-based programs could enlarge the socioeconomic and geographic diversity at the 115 institutions I examined. Yet, as in Israel, the student bodies of elite American colleges would be substantially less racially and ethnically diverse than they are now."

The case was brought by Abigail Fisher, who failed to gain admittance to the University of Texas in 2008 but went on the graduate from the University of Louisiana. Ms Fisher, who is white, claims like others before her (e.g., University of California v. Bakke, 1978) that she was unfairly discriminated against, that she lost a place at UT that was given to someone less deserving. Like the "one man, one vote" hearing in our other Supreme Court article, this case, too, is based on denial of equal protection under the 14th Amendment, and behind it is the same group as that case, the Project on Fair Representation. In other words, this is a conservative movement to scale back affirmative action or eliminate it altogether.

Which does prompt the question of whether affirmative action will ever end; that is, will it ever no longer be needed? It's a policy that treats the symptoms, not the illness. It steps in at the end of the educational process rather than prescribing preventative medicine at the beginning. There is the growing movement of charter schools that end run the teachers' unions and have the freedom to eliminate the bad teachers and reward the good. There are the repairs just made to No Child Left Behind to cut back on the excess testing that had gotten in the way of learning. But the economic imbalance of poverty zones and terrible inner city schools remains. They go on producing kids with below-grade educations, all but a few unable to pursue higher education and only those few having a miraculous spark of ambition able to break through. But scarred by a dozen years of deficient preparation, they can do so only with the need of affirmative help, and no end to that is in sight.