By TAMAR LEWIN and RICHARD PÉREZ-PEÑA
JUNE 30, 2015
The Supreme Court’s decision to reconsider a challenge to affirmative action at the University of Texas at Austin has universities around the country fearing that they will be forced to abandon what remains of race-based admission preferences and resort to more difficult and expensive methods if they want to achieve student diversity.
“A broad general statement by the Supreme Court that it’s unconstitutional to consider race at all will have domino effects across the whole country, and will sweep across private universities as well as public ones,” said Tom Sullivan, the president of the University of Vermont.
He predicted that colleges would have to turn their attention to sustained, intensive recruitment to maintain diverse student bodies.
“We would have to reorient our approach, and spend a lot more time and effort, which would be very costly, in schools that have a high percent of minority students, not just recruiting but helping them prepare for college-level work, starting way back in middle school,” he said.
Some milestone affirmative action decisions by the Supreme Court that govern university admissions.
Many lawyers and higher education experts said the court’s decision Monday to take a second look at the challenge to the University of Texas’ admissions decisions seemed to signal a readiness to strike down the policy, in which a quarter of the class is admitted through what is known as a holistic process, in which race may be considered as one of many factors.
Over the last three decades, the court has issued several decisions on affirmative action in higher education, and most have limited considerations of race. In 2003, the Supreme Court held that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in vaguer ways to ensure academic diversity.
Eight states now ban race-based affirmative action, and their top public universities have different approaches to ensure racial and economic diversity.
Some give preference to working-class students, those from troubled high schools and those whose parents did not attend college. Others have increased financial aid.
The flagship public universities in Texas and Florida — and other states, to a lesser extent — began offering admission based primarily on how high students ranked within their own high schools, rather than statewide, which often meant that poor and minority students competed with others from similar backgrounds.
The University of California system greatly increased the number of transfer students it accepted from community colleges.
California and Texas dropped the use of legacy preferences that disproportionately benefit white and affluent students. At the University of Texas at Austin, substantial diversity is guaranteed by what is known as the Top 10 Percent plan, under which three-quarters of the incoming class is admitted automatically, based on the students’ position in their high school class. (The actual cutoff varies from year to year and is 7 percent this year.) The rest of the class is admitted after review of academic achievement and other factors including race.
A Century Foundation study, conducted in 2012, found that in most states where affirmative action was outlawed, Hispanic and black enrollment at flagship public universities rebounded after an initial drop, exceeding the levels before the ban. But the study also showed that in most of those cases, those increases did not keep up with the growing pool of Hispanic and black high school graduates.
Many supporters of affirmative action were girding for the worst.
“This is a very ominous sign that the court is about to destroy one of the most important avenues of equal opportunity in our society,” said Barmak Nassirian of the American Association of State Colleges and Universities. “If they strike that, what they’re telling us is that all kinds of preferential admissions of legacies, athletes and celebrities are fine, but heaven help you if you’re trying to reflect the diversity of American society.”
There is no certainty that the court will issue a broad ban on any consideration of race. The justices could issue a narrow ruling, or even one that applies only to Texas.
The Texas process under scrutiny by the court involves only a quarter of any class and did not affect the majority of those students admitted for being at the top of their high school classes. The case was brought by Abigail Fisher, a white woman who was denied admission to the University of Texas at Austin in 2008. When the court last considered Ms. Fisher’s case in 2013, it sent it back to the federal appeals court in New Orleans, saying the lower court had been insufficiently skeptical of the Texas program. The appeals court endorsed the program a second time.
“Like most Americans, I hope this case presents the court the opportunity to end racial classifications in higher education, in total,” said Edward Blum, the president of the Project on Fair Representation, which provided counsel to Ms. Fisher, who has since graduated from Louisiana State University. “But if the court just continues to narrow the use of race, we would see that as a great victory, too.”
Gregory L. Fenves, the president of the University of Texas at Austin, said he continued to believe that the Texas plan was lawful, and some others, too, say they do not expect the court to overturn it.
“U.T. didn’t draw this up on the back of a dinner napkin,” said Terry W. Hartle, senior vice president at the American Council on Education. “It’s an appropriate and carefully designed program.” He added, “It’s the suddenness with which the court is going back into this that has led many people to be very concerned.”
If the court broadly turns against consideration of race, many university administrators say, maintaining a diverse student body will require expensive outreach programs. Many universities, in states that still use race as a factor and those that do not, have established partnerships with disadvantaged high schools, to help students jump through the hoops of college admission. College administrators say they are painfully aware of research showing that most high-achieving, low-income high school students never apply to highly selective colleges.
Despite the Top 10 Percent plan, not all the students who qualify apply; some are scared away by costs. The university has started a successful program at 101 high schools that serve low-income students, to raise awareness during senior year of the financial aid that is available.
Many university presidents said that, absent race, such programs could become their most important tool to ensure diversity.
“I do think that ultimately outreach is going to be what is most important for all of us,” said Teresa A. Sullivan, the president of the University of Virginia. “We’ve identified 80 high schools in Virginia that we’re paying particular attention to.”
Anthony P. Carnevale, the director of the Center on Education and the Workforce at Georgetown, said most race-neutral diversity efforts were difficult and expensive.
“The fact is, a lot of universities couldn’t afford to do a lot more,” he said. Ultimately, each university will have to decide where to put its energies and its dollars.
“It’s very difficult to predict how universities would respond, in terms of what policies they would adopt,” said Donald E. Heller, the dean of the College of Education at Michigan State University. “I suspect it would be all over the place.”
The state bans on considering race have struck hard at elite public universities seeking to maintain a pool of minority students. The three most selective institutions in the states with bans — the University of Michigan; the University of California, Los Angeles; and the University of California, Berkeley — have all lost ground in diversity since their state bans went into effect.
“Those three compete on a national level with universities like Stanford and Harvard,” said Richard D. Kahlenberg, the author of the Century Foundation report. “They’re in an impossible situation, since they have to play by one set of rules and the private universities have a different set of rules.”
Many experts said one question was whether the future Supreme Court ruling will be broad enough to apply not just to public universities that have been the battleground for affirmative action litigation, but to private universities as well, as would be the case if consideration of race was deemed unconstitutional.