The Broad Significance of Fisher v. Texas

By Richard Kahlenberg | The Chronicle of Higher Education
January 8, 2012

In the next few weeks, the U.S. Supreme Court is likely to decide whether or not it will hear a challenge to affirmative action at the University of Texas. The university, whose racial-preference program was sustained in the lower courts, has urged the Supreme Court not to take the case, while opponents of affirmative action have strongly urged that the justices do so.

The case, Fisher v. Texas, presents the question of whether an institution of higher education is allowed to use race in admissions even when the use of “race-neutral” alternatives produce a fair amount of racial diversity by themselves. For several years beginning in the mid-1990s, the University of Texas was banned by a Circuit Court decision from using race in admissions, so it employed two alternatives: a socioeconomic affirmative-action program, and a plan under which students from the top 10 percent of every high-school class in Texas were automatically admitted regardless of standardized test scores.

After the U.S. Supreme Court affirmed the ability of universities to carefully employ racial preferences in the 2003 Grutter v. Bollinger decision, Texas went back to considering race alongside the top-10-percent and class-based affirmative-action programs. White plaintiffs sued, arguing that the use of race was unnecessary and therefore violated Grutter because Texas’s race-neutral plans produced sufficient racial diversity.

In its filing with the Supreme Court last month, the University of Texas made a number of arguments, including one that suggested that the “unique circumstances of UT-Austin,” made the case unworthy of Supreme Court review. Percentage plans only exist in three states: Texas, California, and Florida. Moreover, the latter two states’ laws already prohibit consideration of race in admissions so the legality of racial considerations in those jurisdictions is moot. The “Texas-specific” nature of the controversy “does not merit this Court’s review,” the lawyers argued.

But the larger legal issue at stake – how hard should universities be pushed to explore race-neutral alternatives before resorting to race – is hardly unique to Texas. While the specific mechanism involved in Texas’s top-10-percent plan may not work everywhere (particularly at private institutions with national applicant pools), Texas’s use of socioeconomic affirmative action has widespread applicability and has been shown to produce substantial levels of racial and ethnic diversity.

In a 2004 Century Foundation study, for example, class-based affirmative action produced almost as much racial and ethnic diversity (10 percent black and Latino) as the use of race (12 percent black and Latino) at the most selective 146 institutions. And a 2010 study modeling an economic affirmative-action plan at the University of Colorado at Boulder found that a sufficiently large socioeconomic boost produced even more racial diversity than the use of race. These studies comport with research finding that today, socioeconomic obstacles are far more significant than racial ones in predicting achievement on standardized test scores.

The broad question of better defining how much pressure should be placed on universities to devise race-neutral alternatives is likely to be of particular concern to Justice Anthony Kennedy – the swing justice on today’s Supreme Court – who dissented in the 2003 Grutter case. In Grutter, Kennedy argued that the Court should “force educational institutions to seriously explore race-neutral alternatives.” Likewise, in a 2007 case involving the use of race in K-12 school-integration plans, Kennedy suggested that the individual classification of students by race should be employed only as “a last resort.”

It is little wonder that the University of Texas is making every argument it can to keep Fisher away from the Supreme Court. We will soon know whether its efforts are effective.