The case of Fisher v. University of Texas at Austin will come before the U.S. Supreme Court on Wednesday, October 10th. The outcome of this case could determine the future of racial preferences both at the University of Texas at Austin and in higher education nationwide.
The University of Texas system implemented a “10 percent plan” in which students graduating in the top 10 percent of their class in high school gain automatic admission to state schools. However, in the case of the University of Texas at Austin, school officials used racial preferences to influence their admission of candidates falling below the top 10 percent. “Fisher argues that UT- Austin’s race-conscious admissions policies are unconstitutional because they are unnecessary— because UT-Austin can (in her view) attain a ‘critical mass’ of underrepresented minority students through the “Top Ten Percent Law,” argue the respondents (pdf). “But the Top Ten Percent Law exists only in Texas, and the two other States with similar ‘percentage plan’ admission laws prohibit race- conscious admissions. Fisher therefore is seeking not merely error correction, but a Texas-specific form of error correction.” For this and other reasons, they argued last December, the Supreme Court should not hear the case.
“The top 10% law ‘hurts academic selectivity’ by basing the admissions decision solely on class rank, without regard to other standard markers of academic achievement and potential,” argue the respondents (pdf). “Basing the admissions decision on ‘just a single criteria’ has also undermined UT’s efforts to achieve diversity in the broad sense,” they argue.
“The Supreme Court has previously ruled in favor of affirmative action in admissions provided that policies are narrowly tailored, but the plaintiff argues that race-based policies are unconstitutional if there is a suitable alternative for achieving the same ends,” reports Alexandra Tilsley for Inside Higher Ed.
Progressives argued in a recent report that direct racial preferences are not necessary as a means to create a diverse student body, and that diversity may as well include class as well as race. “After almost a half century, American higher education’s use of racial preferences in admissions to selective colleges may well be coming to an end,” contends a recent report issued by The Century Foundation, which describes itself as a “a progressive non-partisan think tank.” John Podesta, Chair of the liberal Center for American Progress, is on the board of trustees.
“Rather than evaluating applicants based on their race, the report says, universities should look at parental income, the wealth of the neighborhood a student comes from, and parental education level, among other factors,” reports Tilsley.
The report’s authors argue that, with the decline of racial preferences, universities can use other programmatic methods of ensuring student diversity while avoiding affirmative action. “The good news for people concerned about racial and economic justice is that, in those states which have banned racial affirmative action, legislators and university officials have not given up on pursuing diversity,” states the report. “To the contrary, as this report outlines, they have invented new systems of affirmative action that in many respects are superior to the ones being replaced as they are attentive to both economic and racial diversity.”
“Recruiting fairly privileged students of color is far less expensive than including low-income and working-class kids of all races,” it states.
“At the University of Texas […] the typical black student receiving a race preference placed at the 52nd percentile of the SAT; the typical white was at the 89th percentile, write ACLU Professor Richard Sander and Stuart Taylor, Jr., in their recent article for The Atlantic. “In other words,” they argue, “Texas is putting blacks who score at the middle of the college-aspiring population in the midst of highly competitive students.
“This is the sort of academic gap where mismatch flourishes. And, of course, mismatch does not occur merely with racial preferences; it shows up with large preferences of all types.” Mismatch, according to Sander and Stuart, Jr., is where students are afforded admissions preferences are placed in classes above and beyond their academic capabilities.
“With striking uniformity, university leaders view discussion of the mismatch problem as a threat to affirmative action and to racial peace on campuses, and therefore a subject to be avoided,” they argue (emphasis in original). One might ask whether mismatch problems might also plague the types of diversity preferences proposed by The Century Foundation report.
Sander and Taylor, Jr. are the authors of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. They have submitted two amici curiae to the upcoming Supreme Court case, one in support of the petitioner and another in support of neither party (pdf).