Supreme Court: If affirmative action is banned, what happens at colleges?

When universities are barred from using race-based affirmative action, what happens to campus diversity?

That’s one key question the US Supreme Court may consider as it once again takes up the issue of affirmative action in higher education, in the case of Fisher v. University of Texas at Austin on Wednesday. Depending on how the high court rules, it could lead to public colleges and universities across the country dropping the consideration of race in admissions decisions.

The last time the Supreme Court took up the issue, in the 2003 case Grutter v. Bollinger, it ruled that the University of Michigan Law School could use race as one factor in admissions. But the court also noted that with a variety of experiments under way to try to achieve diversity through alternative means, schools should periodically review whether consideration of race was still necessary for reaching a critical mass of minority students on campus.

Since the mid-1990s, nine states have engaged in such experiments. Seven states have banned affirmative action in public-university admissions: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, and Washington – states that account for 28 percent of US high school students, according to a new report by The Century Foundation, a think tank in Washington and New York. And both Texas and Georgia have had periods of time where lower courts ruled out the consideration of race.

One common alternative has been to give weight to applicants who come from lower socioeconomic backgrounds. Another is to set up ties with K-12 schools to create a pipeline for and help prepare disadvantaged students. In three of the states, the top universities have also dropped “legacy” preferences for children of alumni, which tend to benefit whites, the Century Foundation report notes.

The impact on underrepresented-minority enrollment at selective institutions has varied, with some still struggling with significant declines while others have achieved rates similar to those before the bans.

Universities “know they can ... create that diversity without using race; it’s just more difficult and more expensive,” says Richard Kahlenberg, an advocate of income-based integration in education and the main author of the Century Foundation report released last week, “A Better Affirmative Action.”

Proponents of affirmative action argue that, although it’s commendable to give more access to people with economic disadvantages, race is still a necessary consideration.

“Race matters,” says Gary Orfield, co-director of the Civil Rights Project at UCLA. If only low-income students get admissions boosts, that still leaves out middle-class African-Americans, for instance, who may live in the suburbs but still attend disadvantaged schools and experience various forms of discrimination.

“Diversity works best when not everybody who is black is poor,” which would reinforce stereotypes, Mr. Orfield says. Among the middle class, “black students have a different worldview on balance ... than typical white students” on everything from history to justice to economics, he says.

At the University of Texas at Austin (UT), policies such as admitting the top 10 percent of high school classes and taking socioeconomics into account drew roughly the same percentages of African-Americans (3 to 5 percent) and Latinos (13 to 15 percent) to campus as before affirmative action was banned. After UT reinstated race as one of many factors in 2005, the percentages climbed slightly for African-Americans and rose several points for Latinos, according to The Century Foundation.

At the same time, the growth of Latinos graduating from high school in Texas makes it difficult to tell how much impact the admissions policies really had. Rates of minority enrollment from a decade ago are not necessarily a sufficient benchmark for what campuses need today, civil rights groups say.

In the case to be heard Wednesday, Abigail Fisher claims that when she applied to UT four years ago, she didn’t get in because she was white and the affirmative-action policy favored others.

Civil rights groups say it’s important to consider not just enrollment numbers, but also the quality of the campus experience for underrepresented minorities when assessing whether a school has achieved the critical mass needed for diversity.

In the fall of 2002, when UT did not use race-conscious affirmative action, for instance, 79 percent of all undergraduate classes had either zero or one African-American student, the NAACP Legal Defense Fund and Educational (LDF) reports.

With that kind of isolation, “you end up being [seen as] the spokesperson for the race,” says Shirley Wilcher, executive director of the American Association for Affirmative Action in Washington. It can also contribute to African-Americans not wanting to attend the school or stay there, she says.

The campuses that have seen the biggest declines in African-American and Latino enrollment in the wake of affirmative-action bans have been UCLA and UC Berkeley – prestigious public schools that compete for students with private colleges that have been free to continue to use race as a factor in admissions.

At UC Berkeley, for example, African-American enrollment ranged between 6 and 7 percent before the voter initiative that banned affirmative action in California in 1996. It then dwindled to between 3 and 4 percent, and in 2010, despite continued attempts to create alternative routes to diversity, it was only 2 percent. Hispanic enrollment also dipped, from about 14 percent before to about 11 percent.

The University of Michigan has also failed to recover its previous numbers since race was dropped as a factor in 2006.

Some studies project that without considering race, even with alternatives such as accepting the top students of each high school class, selective campuses nationally could lose at least 10 percent of black and Latino enrollment.

At the University of Florida, black and Hispanic enrollment has recovered and in some years has surpassed what it was before affirmative action in admissions was banned by executive order of Gov. Jeb Bush in 1999. This could be largely due to race still being considered in financial aid and recruitment, Orfield says. 

Advocates of keeping affirmative action as one option for schools also point to graduate schools in California, Florida, Texas, and Washington, where the average proportion of students of color has dropped by about 12 percent, according to one study.

One experiment at UCLA School of Law indicated it could be possible to achieve racial diversity at the professional-school level without explicitly looking at race, Mr. Kahlenberg notes in his report. By taking into account family wealth and single-parent status alongside more traditional socioeconomic factors, African-Americans were admitted at a rate 11.3 times higher than they were under race-conscious affirmative action, and Latinos were admitted at a rate 2.3 times higher.

As long as the evidence is still mixed, “we need to give universities flexibility ... and we shouldn’t be taking tools [such as affirmative action] off the table ... in the hopes that another [approach] would work,” says Joshua Civin, counsel to the director of litigation at NAACP LDF.