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On October 10, the Supreme Court heard arguments in a case that could spell the end of affirmative action at U.S. universities. Fisher v. University of Texas is a case brought by Abigail Fisher, a white student whose 2008 university application was rejected, she claims, because of her race.
Depending on how the court rules on Fisher next year, the complexion of college campuses could drastically change, particularly at the most competitive schools. Because Title VI of the Civil Rights Act requires all institutions receiving federal funds (which most schools do in the form of student loans and grants) to comply with the equal protection clause of the 14th Amendment, private as well as public universities would feel the effects. It's one reason why both Columbia University and Fordham University have filed friend-of-the-court briefs in support of race-based affirmative action.
"A decision overruling affirmative action would be disastrous," says Michael Olivas, the director of the Institute for Higher Education Law and Governance at the University of Houston. "There is simply no substitute for race."
Yet schools will push for a diverse student body, even if the use of racial preferences is outlawed. Many observers predict that if race is outlawed as a factor in admissions, it will give way to a proxy: economic class.
Fisher is just the latest in a long series of court cases attempting to determine where to draw the line on race as a consideration for admission to colleges and universities. The Supreme Court's last major affirmative action ruling, in the 2003 case Grutter v. Bollinger, allowed the continued use of race as one factor in admissions decisions for the purpose of creating diversity.
At the University of Texas, where Fisher was denied admission, race only plays a small direct role in admissions. In 1998, the university instituted a race-neutral "10 percent" plan that fills about 70 percent of its admissions slots. Under the plan, high school students who graduate in the top 10 percent of their class are guaranteed admission to any public university in the state. Because high schools in Texas remain largely segregated, this method has proved effective in ensuring that nonwhite students still have a shot at state universities: UT now ranks sixth in the nation in granting undergraduate degrees to students of color.
For the remaining applicants, UT does a full file review, which includes looking at high school grades, SAT scores, performance on a test that the university administers, recommendations, high school classes taken, quality of high school attended—and, yes, race.
Fisher's lawyers say she does not object to the 10 percent rule. But the Supreme Court is free to strike down any part of UT's admission policy, from the 10 percent rule, which is peculiar to UT, to the use of affirmative action altogether.
"The court doesn't often take cases that are idiosyncratic, so you begin to wonder whether some justices may want to reconsider the basic principle set down in Grutter v. Bollinger," says Lee Bollinger, the president of Columbia University and the defendant in the 2003 case when he was president of the University of Michigan. "That would be a tragedy, and I and others hope that won't happen."
In its friend-of-the-court brief, the University of California presents itself as a cautionary tale of the possible effects of outlawing affirmative action. California ordered its universities to stop using race in admissions in 1996; since then, the percentage of first-year students at UC Berkeley who are African American has fallen from 7.3 percent to 3.5 percent, and at UCLA from 6.7 percent to 3.8 percent. UC says in its brief that none of its alternative efforts—outreach programs, putting less weight on SAT scores, instituting a percentage program, even considering an applicant's life circumstances and family income—have worked.
Bollinger predicts the same will happen to private universities if the Supreme Court strikes down affirmative action. "You will end up with student bodies that look much as they did at any university in the 1960s or '70s," he says.
Deborah Archer, associate dean of academic affairs at New York Law School, sees firsthand the need for classroom diversity. She teaches courses on civil rights and racial discrimination. "If I have a class of 18 white students, one black student, and one Latino, my class can't have a helpful discussion," she says. "What happens is that one black student becomes the spokesperson for the whole race. Students leave thinking that's what all black people think. There has to be a diversity of perspectives in order to have a rich class discussion."
While Bollinger and Archer paint a dire picture of a future without affirmative action, Richard Kahlenberg, a senior fellow at the Century Foundation think tank, holds out hope for economics-based affirmative action. "Universities have put into place a new system," he says. "They don't directly provide a preference based on race, but they are making admissions decisions with an eye to the end result of creating racial and economic diversity."
Kahlenberg argues that economically disadvantaged students deserve a leg up in admissions, but they aren't getting any extra help. He points to a study by the Century Foundation and Georgetown University that found socioeconomic obstacles outweigh those of race on SAT performance. And yet as a study by former Princeton president William Bowen has found, black, Latino, and Native American students get a 28 percent boost in admissions over what would otherwise be expected given their academic records, while low-income students receive none.