Fisher v. Texas, a recent Supreme Court case, has brought the topic of affirmative action once again to the forefront of the nation’s consciousness. Plaintiff Abigail Fisher sued the University of Texas-Austin in 2008, claiming that racial preferences in the admissions process led to her rejection.
As a leading actor on the issue, Harvard College has been continuously entangled with the politics of affirmative action. In the first university affirmative action Supreme Court case, Regents of California v. Bakke, Justice Lewis Powell opined that other universities should attempt to follow the Harvard College model in weighing race as one among many factors. In the 2003 Grutter v. Bollinger decision, Justice Sandra Day O’Connor reaffirmed that admissions processes may favor “underrepresented minority groups” but could not use explicit quota systems as struck down in Gratz v. Bollinger. Yet, with affirmative action hanging in the balance, the new ‘Harvard College model’ remains a progressive leader in the field, creating comprehensive socioeconomic and racial diversity in the classroom and offering a pathway for future affirmative action.
A Long History in the Courts
The 1996 Hopwood v. Texas case marked the first major victory for affirmative action opponents. With eerily similar facts to the Fisher case, a group of four white University of Texas School of Law applicants sued the university after being rejected despite having better test scores than many admitted minority students. Harvard Law professor Laurence Tribe unsuccessfully argued the case pro-bono in the Fifth Circuit for UT Austin. At the time, University President Robert Berdahl called the decision “the virtual re-segregation of higher education.”
The state of Texas quickly made legislative amends with the enactment of the “top 10 percent” policy. The law now requires public state universities to accept all applicants in the top 10 percent of their graduating class. Although recently revised down to the eight percent mark, the policy uses the de-facto segregation of Texas society to ensure racial diversity in higher education.
A UT Austin professor who requested anonymity told the HPR, “it was a remedy for a situation in which we had been forbidden to consider race in admissions. In private schools like Harvard, they are not barred from doing that but our hands were tied by the Fifth Circuit. The main virtue of it was in that a situation where we were forbidden to consider race, the law allowed us to have a very diverse campus.”
After the Court handed down the Grutter decision in 2003, the university began to consider race in its evaluation of non-top 10 percent applicants. Although top 10 percent applicants made up 81 percent of admitted students in 2008, the year Fisher was rejected, UT Austin admissions director Kendra Ishop reiterated the need to use a holistic process of admissions.
“Race and cultural background has a part in the process of character review,” Ishop told the HPR. “Automatic admissions rules have been in place since Grutter, but it’s only a tool in the toolbox, not the entire toolbox.”
Reparative or Educational?
Ishop argues that “all diversity has a role in racial education” and says in the applicant pool, “students represent a variety of diverse situations, and we want all of those to be represented at our school.” She defends the policy on the more conventional basis of promoting racial diversity in the classroom. Ever since the Supreme Court upgraded the standard of scrutiny for affirmative action, forcing defendants to give a “compelling state interest” for justifying their policy instead of just a “rational basis,” a legally crucial distinction, arguments defending the policy have shifted from repairing past wrongs to its benefits for campus diversity.
Richard Kahlenberg, a senior member at the Century Foundation, a non-profit think tank, told the HPR that he thinks “most universities view affirmative action as a way of promoting a more racially and ethnically diverse student body, which translates into a better learning environment for students.” However, Kahlenberg acknowledged that the idea of the college application process as anything less than a full meritocracy bothered Americans who feel discriminated against by the policy, particularly poor whites who are seen as undesirable applicants by universities.
“I think the American public sees institutions of higher education as a gateway to the American dream and therefore would put a big premium on [an] admission system that they see as fair and genuinely meritocratic,” Kahlenberg said. Kahlenberg, who advocates reform of the system to produce both greater socioeconomic and racial equality, says that “the complete focus on racial and ethnic diversity has allowed selective colleges and universities to avoid large issues of class and equality.”
Kahlenberg cites a recent book by UCLA law professor Richard Sander, Mismatch, which details the harmful consequences of affirmative action. The book argues that through race-based affirmative action, blacks from lower-income brackets are more likely to enter college than their white socioeconomic counterparts, but are far more likely to earn lower grades, “rank towards the bottom of their class, and drop out.” Kahlenberg says that when students are mismatched with an institution because of affirmative action, “studies show that they are more likely to steer away from math and science and fail the bar exam.”
Kahlenberg is not alone in his desire for substantial reform. Nine states have already struck down affirmative action through voter initiative or action by state legislatures, and a January Rasmussen poll reported that 55 percent of Americans oppose the policy.
Moving to the Future
The Century Foundation recently released a paper titled “A Better Affirmative Action: State Universities That Created Alternatives to Racial Preferences.” The paper, co-written by Kahlenberg, argues against the need for racial consideration in admissions decisions and in favor of holistic socioeconomic models. The approach is similar to those taken by Sander and other intellectuals in the field, who support alternative policies that incorporate other measures of diversity.
Kahlenberg, himself a graduate of both Harvard College and Harvard Law School, thinks that the contemporary Harvard College model of admissions offers a blueprint for the future of affirmative action. He says, “Under the leadership of Larry Summers and Bill Fitzsimmons in the admission office, Harvard has made a concerted effort to bring in low-income students of all races [along with] students of color, and in my mind that’s a big step forward in making affirmative action more inclusive of socioeconomic status.”
Kahlenberg adds that Harvard and Amherst are the only two universities that have done this for admissions, stating, “universities normally do not care about socioeconomic diversity for its own sake.” He views the UT situation with Hopwood as a perfect example of what must happen to bring change: a legal impetus that forces universities to consider other options. “The only way to get universities interested is to ban the use of race,” Kahlenberg said. “It’s only once you ban the use of race for universities that they push for using socioeconomic affirmative action as a way of indirectly achieving racial diversity.”
Recent history supports Kahlenberg’s thesis, with Florida and California both adopting similar policies after voter initiatives banning affirmative action were passed. The Century Foundation report also details how socioeconomic diversity promotes a larger variety of individuals in the classroom.
A similar study by Georgetown University professors Anthony Carnevale and Stephen Rose argues that a merit-based system that considers socioeconomic disadvantages would boost the percentage of students from the bottom socioeconomic half without lowering graduation rates. Both reports cite polls that demonstrate while public support for traditional affirmative action is waning, support for the socioeconomic admissions model is increasing.
“If the value of diversity from an education standpoint is based in large measure on the different life experiences that students bring to the classroom, then a white student growing up in a trailer home, a black student growing up in the ghetto, or a Latino studen[t] growing up in a barrio is likely to bring as much diversity as the son of a doctor or lawyer, no matter his race,” the report says.
Regardless of what happens in the high court, affirmative action appears to be taking a different turn. While not every school has the ability to provide the financial aid required for a policy like the one Kahlenberg advocates, modern policy trends towards Kahlenberg’s vision. Once again, Harvard College is trailblazing a path for other universities to follow.