By Kevin Carey
Affirmative action as we know it is dying. A growing number of states have moved to prohibit public universities from considering race in admissions, and the U.S. Supreme Court recently made a decision in an anti-affirmative action lawsuit that left little doubt about where the Court’s conservative majority stands. Less than a decade after the Court upheld racial admissions preferences in Grutter v. Bollinger, newer jurists like Samuel Alito and Chief Justice John Roberts seem ready to call into question and refuse to reaffirm a policy that has helped generations of minority students grab a rung on the ladder of opportunity.
The Court’s decision to remand the case - Fisher v. University of Texas - to the U. S. Court of Appeals for the 5th Circuit is apparently a temporary victory. It is particularly odious given the college admissions apparatus it could leave in place if ever struck down. Elite colleges warp and corrupt the meritocratic admissions process in a wide variety of ways. Academically substandard athletes, for example, are allowed in so they can play for the amusement of alumni and help shore up the fund-raising base. While some men’s football and basketball players come from low-income and minority households, many athletes at the highly selective colleges where affirmative action really matters engage in sports like crew and lacrosse that are associated with White, privileged backgrounds. Colleges also give preference to the children of legacies, professors, celebrities, politicians, and people who write large checks to the general fund. All of these groups are also disproportionately wealthy and White.
In other words, the Supreme Court is poised to uphold affirmative action for everyone except Minority students. We’ve come to this point in part because the Court has been packed with people like Roberts, who once struck down a plan to integrate public schools on the grounds that he saw no distinction between race-conscious policies that increased integration and the kind of brutal discrimination outlawed by Brown v. Board of Education. Apparently, John Roberts doesn’t see race, so neither should anyone else.
But affirmative action is also dying because it has strayed far from its original purpose. The justification for affirmative action the Court used in Grutter is that schools have a compelling interest in increasing racial diversity because students benefit from learning among people from disparate backgrounds.
This allowed Roberts to harangue lawyers defending the University of Texas’s affirmative action policies by asking them how much diversity, exactly, they were shooting for, knowing that any specific answer could be struck down as an illegal quota. Perpetual swing vote and de facto King of America Anthony Kennedy, meanwhile, made the sensible critique that UT was giving preference to wealthy minority students, since the university presumably gets more than enough of the poor kind through a state law granting automatic admission to students who graduate in the top 10 percent of their high school class.
Regardless of how the Court ultimately rules, it’s time to return affirmative action to its original purpose: leveling the college playing field for students who have been unjustly denied a fair chance at success. And the most important part of that project is expanding this idea far beyond elite colleges and universities.
While Brown is the iconic twentieth-century decision on race and educational justice, the 1954 decision was presaged by a number of crucial legal actions in higher education. Unsurprisingly, states with racist elementary and secondary school policies also discriminated against Black students in their universities. In 1950, future Supreme Court Justice Thurgood Marshall argued and won Sweatt v. Painter, which prohibited UT from forcing Black students into a separate law school.
More than half a century after states were instructed to desegregate with "all deliberate speed," the Justice Department still maintains a division of lawyers tasked with monitoring racial discrimination in public schools. (A DOJ headline from November 2012: "Justice Department Reaches Settlement with Georgia School District to Ensure All Students Can Enroll in and Attend School.") Long-term residential and economic trends have made many of those districts impoverished and racially homogenous. As a result, minority students go to schools that on average receive less funding than those serving white students and are more likely to have unqualified teachers.
The same patterns persist in higher education. But here’s where the two parts of our education system sharply diverge. Both K-12 and higher education continue to suffer from a legacy of racism. There is enormous awareness of the elementary and secondary side of the problem. George W. Bush’s signature domestic policy achievement, the No Child Left Behind Act, was designed to erase the "achievement gap" between White and minority students, while the Obama administration’s Race to the Top school initiative was touted by both candidates in the recent presidential debates. There is currently a roiling national argument about K-12 school reform, with partisans and advocates arguing for and against standardized testing, charter schools, teacher merit pay, school closings, and many other policies aimed at fixing low-performing schools.
Kevin Carey is the director of the Education Policy program at the New America Foundation.
To be continued next week...