Supreme Court takes new look at affirmative action

NEW YORK TIMES
As the Supreme Court heard arguments on Wednesday in a case challenging race-conscious admission to public colleges, university officials across the country watched for clues to where the court might go while contemplating what steps schools might take if the court changed the state of the law.
Related

Schools are bracing for three broad categories of possible outcomes in the case, Fisher v. University of Texas: a complete and history-making ban on race-conscious admissions, a tightening of the current limitations on consideration of race or ethnicity, or a decision that more or less leaves things as they are. The result will turn largely on the court’s reading of its 2003 decision in Grutter v. Bollinger, when the justices, by 5 to 4, ruled that schools may take race into account as one factor among many, as long as they do not use numerical quotas. A decision will be issued next year.

“An outcome a lot of us in higher education are contemplating is that they could affirm Grutter, at least in name, but impose a stricter definition of what it allows,” said John C. Boger, dean of the law school at the University of North Carolina at Chapel Hill, and an author of a brief that school submitted to the court in support of the University of Texas. “Then the question becomes, do they make the test for race-conscious action so tough that no one could ever pass it?”

Such a ruling, just as surely as an outright ban on consideration of race, would force the more-selective public colleges to change their admissions practices. (Many of the nation’s public schools have open admissions, meaning that they take anyone whose high school credentials are above a certain threshold; they would not be affected by the ruling.)

Seven states already ban any consideration of race in admission to state schools, and to varying degrees, their colleges have responded with “race-blind” ways to achieve diversity, like distributing admissions among all public high schools, recruiting aggressively in poorer communities and giving some preference to low-income applicants and those from underperforming schools.

A report released last week by the Century Foundation argued that alternatives to affirmative action can work reasonably well in producing ethnic diversity, and much better in producing economic diversity.

In California, whose ban has been in place longest — voters approved it in 1996 — the highly competitive University of California system has tried several approaches, with varying results.

One approach in particular now being used in Texas, California and elsewhere, has won admirers: trying to spread admissions by community rather than race. That can mean giving preference to low-income students and those who go to low-performing schools, recruiting aggressively in poorer areas and, most often, admitting a certain percentage of students from the top of the class at every high school in the state.

“I don’t know anybody who’s opposed to that, in principle, but it has not allowed us to achieve the level of diversity we’d like to see, particularly at our most selective campuses, Berkeley and U.C.L.A.,” said David M. Birnbaum, chief deputy general counsel of the University of California system. “I think most educators believe in the importance and value of diversity, and if some avenues are closed to them to achieve that, they’ll look for others, but it’s not an easy thing to do.”

Mr. Boger said his colleagues had studied how a “percentage plan” would work at the University of North Carolina, and found that while it would admit nearly as many blacks and Hispanics, it would also significantly lower the caliber of students.

In addition, educators noted that if they could not take race into account, there was no guarantee that all public universities would go to the same lengths that California has to achieve diversity. Some even speculated that their states’ lawmakers might block such measures.