Contrary to many media reports, the U.S. Supreme Court decision in the latest challenge to affirmative action, Fisher v. University of Texas, is likely to have a large impact on the future of admissions policies. The Supreme Court did not immediately decide the fate of Abigail Fisher, the white plaintiff who challenged the use of race in admissions, but instead returned the case to the lower court for further review. Many interpreted the decision as allowing affirmative action policies to survive as is.
But a close reading of the 7-1 Supreme Court opinion, authored by Justice Anthony Kennedy, is leading many lawyers to conclude that universities will need new affirmative action programs with “race-neutral alternatives,” such as preferences based on economic disadvantage or automatically admitting the top 10 percent of a state’s high school students.
Justice Kennedy, who dissented in the 2003 case of Grutter v. Bollinger that upheld racial preferences at the University of Michigan Law School, raised the bar in Fisher. He wrote, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
Justice Sandra Day O’Connor, writing for the majority in the Grutter case, took the University of Michigan at its word that it couldn’t find workable alternatives to racial preferences.
But Kennedy’s Fisher decision suggests that on that question “the university receives no deference.”
As Scott Greytak told the Chronicle of Higher Education, “If I were a school administrator or admissions officer, I would already be investigating race-neutral admissions policies, and planning on the Fisher case coming down against race-conscious programs.”
Affirmative action has been banned—by voter referendum, executive order, and legislation—at public universities in California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, and Oklahoma. Individual universities in Texas and Georgia have also dropped the use of race in admissions. In virtually all these cases, universities have adopted a variety of “race-neutral” means for indirectly achieving diversity by race. In 2012, my colleague, Halley Potter, and I analyzed programs in nine states and reported our findings in “A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences.” We found that seven of nine states have adopted class-based affirmative action programs that give a leg up in admissions to economically disadvantaged students. In three states, key public universities have dropped legacy preferences that provide an advantage to children of alumni, a disproportionately wealthy and white group. In eight states, financial aid programs have been beefed up, as have recruitment efforts. In six states, partnerships have been established between universities and K12 institutions to improve the pipeline of academically advanced, low-income and minority students. And in two states, stronger programs have been created to facilitate transfer from two-year to four-year institutions.
How well have these programs created racial and ethnic diversity? In seven of 10 public universities examined, race-neutral alternatives produced as much or greater levels of black and Latino enrollment as the use of race had previously. The three exceptions—UC, Berkeley, UCLA, and the University of Michigan—all compete for students against a variety of public and private universities that have continued to use race in admissions.
A new phase
Justice Ruth Bader Ginsburg, in her Fisher dissent, complained that because race-neutral alternatives have the intent of creating racial diversity, we should just let universities be honest and employ racial preferences themselves.
But a majority of the American public shares the logic that there are significant moral and social costs to using race to decide who gets ahead in society, so if there is a way to achieve a desired outcome, such as racial diversity, short of explicitly counting skin color, that alternative should be favored.
The Fisher case, then, doesn’t represent the end of affirmative action, but rather a new phase, in which factors like economic disadvantage count more than race. That’s a healthy development, which will lead to a legally unassailable and far more popular form of affirmative action in the years to come.
Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action (Basic Books, 1997).