Race-based admissions faces ‘strict scrutiny’

The U.S. Supreme Court didn’t reject the University of Texas’ race-conscious admissions plan outright, as many had expected. However, justices voted 7 to 1 to send the Fisher ase back to a lower court for “strict scrutiny” of whether the plan is justified.

“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element,’ ” wrote Justice Anthony M. Kennedy.

In 2003, a divided court in Grutter v. Bollinger approved a limited use of race by the University of Michigan Law School to achieve a “critical mass” of diversity, notes the Washington Post.

The University of Texas at Austin . . . admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools. Since many of the state’s high schools are dominated by one race or ethnicity, this has created a diverse applicant pool.

For the remaining slots, it uses a “holistic” evaluation of applicants that includes race as one of many factors.

The case is named for Abigail Fisher, a white student who didn’t qualify for automatic admission. She argued “the attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008.” She went instead to Louisiana State University (no doubt paying higher out-of-state tuition) and earned a bachelor’s degree.

Strict scrutiny just got a lot stricter, writes Kirk Kolbo, who argued against UM’s race-conscious affirmative action plan in Grutter, on Powerline.

. . . the Court’s opinion in Fisher goes into painstaking detail (more than five pages are devoted to the issue) about how the Fifth Circuit should go about applying strict scrutiny after the remand.

. . . Strict scrutiny requires both a “compelling interest” justifying the use of race as a factor in decision-making, and means of implementing that interest that are “narrowly tailored” to achieving it.

. . .  Fisher states that a university “receives no deference” on the question of whether the “means chosen . . . to attain diversity are narrowly tailored to that goal.”

. . . Perhaps the strongest point in Fisher is the statement that “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” (emphasis added).

It will be much harder for racial preferences to pass muster, Kolbo predicts.

Diversity without racial preferences

Can Diversity Survive Without Affirmative Action?  The Supreme Court will rule soon on whether the University of Texas can use race and ethnicity in admissions, points out the New York Times‘ Room for Debate blog. If universities can’t use race, can they achieve diversity by giving preferences to low-income students, improving outreach and financial aid or ending legacy preferences?

Affirmative action for low-income students of all races is fairer than racial preferences, writes Richard Kahlenberga senior fellow at the Century Foundation.

Liberals are likely to bemoan any Supreme Court decision reducing racial preferences, but such policies never had the support of the American public and a ruling along these lines could pave the way for better programs. While universities prefer race-based programs that assemble generally well-off students of all colors, the end of such programs will likely usher in a more aggressive set of policies that will, at long last, address America’s growing economic divide.

California has preserved diversity, despite a state ban on race-based affirmation action, writes Stephanie Reyes-Tuccio, who directs the Center for Educational Partnerships at the University of California at Irvine. “Outreach to disadvantaged communities equals more outreach to students of color.”

Academic merit should be the primary criteria for admission, writes Richard Vedder, an Ohio University economist who directs the Center for College Affordability and Productivity.

It is unfair and wrong to accept a black child from a prosperous college-educated family with a $200,000 income while rejecting an equally qualified white person from a poor household with a $40,000 income where the parents never attended college.

“Taking more poor students . . . arguably promotes the American Dream of equality of opportunity, but also works to support minority admissions,” Vedder writes. But they must be qualified academically.

Beyond race-based affirmative action

After oral arguments today in Fisher vs. University of Texas, many think the U.S. Supreme Court will limit, if not eliminate, universities’ ability to use race in admissions. The plaintiff, Abigail Fisher, argues UT has achieved diversity by admitting the top 10 percent graduates at each high school and doesn’t need to use a race-conscious policy to admit more blacks and Hispanics.

A loss for affirmative action would be good for ethnic and racial diversity in the long run, argues Thomas J. Espenshade, in Moving Beyond Affirmative Action, a New York Times commentary. Americans would have to address “the deeply entrenched disadvantages that lower-income and minority children face from the beginning of life,” writes Espenshade, a professor of sociology at Princeton and a co-author of  No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life.

Race-based affirmative action affects only 1 percent of all black and Hispanic 18-year-olds, the students who apply to more selective colleges and universities, he writes. Eliminating the preference would cut black admissions by 60 percent and Hispanics by one-third at selective private schools. Giving preferences to low-income students wouldn’t make up the difference, “given the large numbers of working-class non-Hispanic whites and Asians in the applicant pool.”

Without affirmative action, racial diversity on selective college campuses could be preserved only by closing the racial achievement gap, Espenshade writes.

 If affirmative action is abolished, selective colleges and universities will face a stark choice. They can try to manufacture diversity by giving more weight in admissions to those factors that are sometimes close substitutes for race — for example, having overcome disadvantage in a poor urban neighborhood. Or they can take a far bolder step: putting their endowments and influence behind a comprehensive effort to close the learning gap that starts at birth.

That would be a long, hard struggle, but it would benefit many more people. “However the court decides the Fisher case, affirmative action’s days appear numbered,” Espenshade predicts. ”In 2003, in the Grutter decision, Justice Sandra Day O’Connor wrote that she expected such preferences to disappear within 25 years — by 2028. The children who would go off to college that year are already 2 years old.”

Special-ed parents win in court

Parents of disabled students can seek reimbursement for private school tuition, even if their child didn’t receive special education services in public school, the U.S. Supreme Court ruled this week. The case involved an Oregon high school students in the Forest Grove district who was diagnosed as learning disabled only after he enrolled in private school.

If the public school can’t provide an appropriate education to a disabled students, parents have the right to seek a private placement at public expense. “Nationally, about 90,000 special-education students are in private schools, most of them referred by their public schools,” reports the New York Times.

Justice John Paul Stevens wrote the opinion for the 6-3 majority.

“It would be strange for the act to provide a remedy, as all agree it does, where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether,” he wrote.

Why not extend choice to all parents, asks Jay P. Greene. “Why should any child, disabled or not, be made to wait for an appropriate education?”