Affirmative Action after Fisher v. Texas

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Affirmative Action and Affirmative Action and FisherFisher – What Now? – What Now?

The Century FoundationThe Century Foundation

Richard D. KahlenbergRichard D. Kahlenberg

July 19, 2013July 19, 2013

I. Meaning of I. Meaning of FisherFisher

Paradox: A victory for racial diversity and a defeat for Paradox: A victory for racial diversity and a defeat for racial preferences.racial preferences.

Educational benefits of diversity remain a compelling Educational benefits of diversity remain a compelling state interest. (No one joined Justice Thomas’s state interest. (No one joined Justice Thomas’s concurrence saying no principled distinction between concurrence saying no principled distinction between today’s arguments for the educational benefits of today’s arguments for the educational benefits of diversity and arguments advanced by segregationists.)diversity and arguments advanced by segregationists.)

By 7-1, major emphasis on finding “workable race By 7-1, major emphasis on finding “workable race neutral alternatives” to achieving racial diversity. (No neutral alternatives” to achieving racial diversity. (No one joined Justice Ginsburg’s dissent which said if goal one joined Justice Ginsburg’s dissent which said if goal is racial diversity, fine to just use racial preferences.)is racial diversity, fine to just use racial preferences.)

FisherFisher not just a “punt”: changed not just a “punt”: changed the law from the law from GrutterGrutter (2003) (2003)

In In GrutterGrutter, majority said universities must engage in , majority said universities must engage in “serious, good faith consideration of workable race-“serious, good faith consideration of workable race-neutral alternatives” but then deferred to Michigan’s law neutral alternatives” but then deferred to Michigan’s law school. “We take the Law School at its word that it school. “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral would ‘like nothing better than to find a race-neutral admission formula’ and will terminate its race-admission formula’ and will terminate its race-conscious admissions program as soon as practical.”conscious admissions program as soon as practical.”

Kennedy dissented in Kennedy dissented in GrutterGrutter: Judges should “force : Judges should “force institutions to seriously explore race-neutral institutions to seriously explore race-neutral alternatives” rather than being “satisfied by the Law alternatives” rather than being “satisfied by the Law School’s profession of its own good faith.”School’s profession of its own good faith.”

FisherFisher Adopts Kennedy’s Adopts Kennedy’s GrutterGrutter DissentDissent

In Fisher, 7-1 opinion says, “strict scrutiny In Fisher, 7-1 opinion says, “strict scrutiny imposes on the university the ultimate burden of imposes on the university the ultimate burden of demonstrating, before turning to racial demonstrating, before turning to racial classifications, that available, workable race-classifications, that available, workable race-neutral alternatives do not suffice.”neutral alternatives do not suffice.”

On questions such as whether race-neutral On questions such as whether race-neutral alternatives are available “the University receives alternatives are available “the University receives no deference.”no deference.”

To make clear: “Strict scrutiny must not be strict To make clear: “Strict scrutiny must not be strict in theory but feeble in fact.”in theory but feeble in fact.”

Source: U.S. Supreme Court, Fisher v. University of Texas (2013), Slip Opinion, p. 3.

Supreme Court’s Analysis of Supreme Court’s Analysis of Texas’s Race-Neutral StrategyTexas’s Race-Neutral Strategy

Predictions on the Viability of Predictions on the Viability of Racial PreferencesRacial Preferences

Higher Education attorney Scott Greytak: “The Higher Education attorney Scott Greytak: “The result’s already in. The court did not want the result’s already in. The court did not want the headlines of having struck down affirmative headlines of having struck down affirmative action, but has pre-determined the death of action, but has pre-determined the death of race-conscious policies.”race-conscious policies.”

University of Houston Law Professor Michael University of Houston Law Professor Michael Olivas: Affirmative action “lives on, but all of us Olivas: Affirmative action “lives on, but all of us believe it’s under an impending death penalty.” believe it’s under an impending death penalty.”

Greytak and Olivas support affirmative action.Greytak and Olivas support affirmative action.

II. Race-Neutral AlternativesII. Race-Neutral Alternatives

What are the leading race-neutral strategies?What are the leading race-neutral strategies? How effective are they in producing racial How effective are they in producing racial

diversity?diversity? Is the push for race-neutral strategies a good Is the push for race-neutral strategies a good

thing or a bad thing?thing or a bad thing?

Race-Neutral Alternatives in 9 Race-Neutral Alternatives in 9 States where race droppedStates where race dropped

6 states promoted university partnerships with 6 states promoted university partnerships with disadvantaged high schools. disadvantaged high schools.

7 states provided class-based admission preferences.7 states provided class-based admission preferences. 8 states expanded financial-aid budgets.8 states expanded financial-aid budgets. In 3 states, individual universities dropped legacy In 3 states, individual universities dropped legacy

preferences. preferences. 3 states rewarded high class rank and downplayed test 3 states rewarded high class rank and downplayed test

scores. scores. 2 states adopted stronger programs for transfer from 2 states adopted stronger programs for transfer from

community college to four-year institutions.community college to four-year institutions.

Do Race Neutral Methods Work?Do Race Neutral Methods Work?Met or Exceeded Pre-Affirmative-Action-Ban

Representation at 10 Leading Universities

African American Latino

UT Austin (1996) YES YES

Texas A&M (1996) YES YES

UC Berkeley (1996) NO NO

UCLA (1996) NO YES

U of Washington (1998) YES YES

U of Florida (1999) YES YES

U of Georgia (2000) YES YES

U of Michigan (2006) NO NO

U of Nebraska (2008) YES YES

U of Arizona (2010) YES YES

Is Emphasis on Race-Neutral Is Emphasis on Race-Neutral Strategies a Good Thing?Strategies a Good Thing?

Under Under FisherFisher, guaranteed racial diversity one way , guaranteed racial diversity one way or the other: from alternatives (if they work) or or the other: from alternatives (if they work) or by using race (if alternatives are insufficient.) by using race (if alternatives are insufficient.)

Promote social mobility and fairness in the Promote social mobility and fairness in the admissions process by addressing class admissions process by addressing class inequality.inequality.

Avoid downside of using race, including lack of Avoid downside of using race, including lack of political support. political support.

Note: Figures refer to 1995 applicant pool. Adjusted admissions advantage for Bottom income quartile is calculated relative to middle quartiles.

Source: William G. Bowen, Martin A. Kurzweil, and Eugene M. Tobin, Equity and Excellence in American Higher Education (Charlottesville, VA: University of Virginia Press, 2005), 105, Table 5.1.

Adjusted Admissions Advantages at Elite Colleges

27.7%

-1.0%

-5%

0%

5%

10%

15%

20%

25%

30%

Underrepresentedminority

Bottom income quartile

Pe

rce

nta

ge

po

ints

of

ad

va

nta

ge

Current Emphasis: Race Not ClassCurrent Emphasis: Race Not Class

Current Emphasis: Race Not ClassCurrent Emphasis: Race Not ClassBoost in the Admissions Process

at Highly Selective Private Institutions

130

310

70

0

50

100

150

200

250

300

350

African-Americanapplicants

Working-classapplicants

Poor applicants

SA

T p

oin

ts

Source: Thomas J. Espenshade and Alexandria Walton Radford, No Longer Separate, Not Yet Equal (Princeton, NJ: Princeton University Press, 2009), 92, Table 3.5.

Economic Diversity at Selective InstitutionsEconomic Diversity at Selective Institutions

Source: Anthony P. Carnevale and Jeff Strohl, “How Increasing College Access Is Increasing Inequality,and What to Do about It,” in Rewarding Strivers: Helping Low-Income Students Succeed in College,ed. Richard D. Kahlenberg (New York: Century Foundation Press, 2010), 137, Figure 3.7.

Disadvantages Based on Class More Disadvantages Based on Class More than Racethan Race

Cost of Disadvantage (in SAT points)

56

399

0

50

100

150

200

250

300

350

400

450

Low socioeconomic status Black

SA

T p

oin

ts

Source: Anthony P. Carnevale and Jeff Strohl, “How Increasing College Access Is Increasing Inequality, and What to Do about It,” in Rewarding Strivers: Helping Low-Income Students Succeed in College, Richard D. Kahlenberg, ed., (New York: Century Foundation Press, 2010), 170, Table 3.7.

TX Percent Plan: IncomeTX Percent Plan: Income

Source: William Powers Jr.., “The University of Texas at Austin: Report to the Governor, the Lieutenant Governor, and the Speaker of the House of Representatives on the Implementation of SB 175,” December 31, 2011, http://www.utexas.edu/student/admissions/research/SB_175_Report_for_2011.pdf, p. 29, Table 4.3.

Can Low-Income Students Do the Can Low-Income Students Do the Work?Work?

Source: Anthony P. Carnevale and Stephen J. Rose, “Socioeconomic Status, Race/Ethnicity, and Selective College Admissions,” in America’s Untapped Resource: Low-Income Students in Higher Education, Richard D. Kahlenberg, ed. (New York: Century Foundation Press, 2004), 142, 149.

Effects of Race-based vs. Socioeconomic Preferences

10%

38%

90%86%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Race-based, legacy, andathletic preferences

Socioeconomic preferences

Percentage ofstudents in theBottom TwoSocioeconomicStatus Quartiles

Graduation Rates

Public Opinion:Public Opinion: Affirmative Action by Race vs. Class Affirmative Action by Race vs. Class

Support for Racial and Economic Affirmative Action: 3 polls

26 27 26

59 5765

010203040506070

LA Times EPIC/MRA Newsweek

Race

Income

Source: EPIC/MRA poll (conducted January 29–February 3, 2003); Los Angeles Times poll (conducted January 30–February 2, 2003); and Newsweek poll (conducted January 16–17, 2003).

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