There is widespread speculation that the short opinion - which took many months to write - represents a compromise among the justices, with Kennedy and the conservatives getting a tougher standard put in place, and Breyer and Sotomayor getting a delay in the day of reckoning by having the case returned to a lower court. By the time the case eventually returns to the Supreme Court for another review, after all, it is conceivable that President Barack Obama will have been able to replace an ailing conservative justice with a new liberal.
How will the Fisher decision affect university admissions? That partly depends on whether universities follow the new law. Racial affirmative action is strongly ingrained in the academy and college officials typically push the racial envelope as far as they can. But general counsels are likely to push back, not wanting to risk subjecting their institutions to litigation under the new Fisher standard.
If universities begin truly adopting race-neutral affirmative action programs, it will revolutionize the way students are admitted. Several researchers have found that today universities provide large preferences based on race and virtually no consideration for economic status. One study, for example, found that affirmative action by race triples the proportion of black and Latino students on selective campuses compared to a system of admissions based on grades and test scores. By contrast, universities provide no comparative boost whatsoever to the representation of the bottom socioeconomic half.
The requirement that universities first pursue race-neutral alternatives to racial diversity is all to the good. Race has always been a poor proxy for disadvantage because not all minority students are disadvantaged and not all disadvantaged students are minorities. At selective colleges, for example, William Bowen and Derek Bok found that 86% of African Americans are middle or upper class. And race-based affirmative action has missed out on large numbers of highly talented low-income students. At the most selective 193 colleges and universities, according to Anthony Carnevale and Jeff Strohl of Georgetown University, 70% of students come from the richest quarter of the population and only 5% from the poorest quarter.
Most importantly, the new class-based affirmative action can, at long last, address what today researchers find is the most substantial obstacle to doing well: socioeconomic disadvantage. These new policies can tap into the talents of poor and working class students of all races in a way that racial affirmative action never did.
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