The Sun Setting on Affirmative Action

-- By LissetteDuran - 29 Apr 2012

Introduction

If the Supreme Court finds affirmative action programs unconstitutional, schools will have to find other ways to increase their minority student population. Pressure from their student body, alumni, and partner organizations will compel schools to maintain and increase their numbers. However, forcing schools to use less transparent means helps obfuscate the problem of racial inequality in schools.

Affirmative Action Again

In February, the Supreme Court agreed to hear Fisher v. University of Texas, a case involving a challenge to their race-conscious admissions policy. In addition to their policy of admitting the top students at every high school in the state, the university also uses a complex system in which race plays a significant, but unquantifiable, role. Because Justice O’Connor was replaced by a more right-leaning Justice Alito Jr., many believe that the Court might find affirmative action programs unconstitutional.

An affirmative action program, or a race-conscious admissions policy, is a system that uses the race of the student as an important factor--although not a dispositive one--to help admissions decide what students to admit into their incoming class. These kinds of race-based classifications usually have to pass strict scrutiny in the courts. However, the Grutter Court (or rather O'Connor) affirmed that these classifications were needed given our history with race-relations, and deference would be given to universities trying to diversify their student bodies. Even so, this opinion provided a sunset provision: the use of affirmative action policies would be revisited after 25 years to see whether these policies were still necessary.

Considering the difficulty of erasing decades of racial discrimination, the Grutter Court believed that 25 years would be ample time to revisit the necessity of this approach. From a student's point of view, it does not seem like much has changed since Grutter. Minorities are still vastly underrepresented and discriminated against in our educational institutions. Yet, in less than 10 years, this Court felt it necessary to revisit the constitutionality of race-conscious admissions programs.

What Happens Next?

It is not absolutely clear that race-conscious admissions programs will be struck down. Although Grutter supporters highlight the shortened sunset provision and the bad facts provided by the Texas case to show that the Court will not come out favorably this time around, the Court's recent decision regarding the Affordable Health Care Act (ACA) shows that there might be some hope yet. As it did for the ACA, the Court will have to consider the long-term consequences of denying something so desperately needed by the largest growing population in America.

If the Court cannot continue to find some legal loophole to rationalize their decision for supporting race-conscious admissions programs, schools are in for some upheaval. Public colleges and universities will have to hustle to eliminate their open diversity programs. They will stop sending diversity mailings and posting their minority numbers as accolades. Enrollment numbers will probably fall&#8212--in some places drastically. We are unsure what private schools will do. Many rely heavily on federal funding for their programs and it is likely that many will have to change their admissions policy as well.

There is no question that there will be a lot of gray. But when the storm settles, as with all front-page news, things will start to pick themselves up again. Schools will find other ways to increase their minority numbers. Their admissions process—the internal and discrete process that it is—will become heavily influenced by the communities the schools serve.

Increasing Minority Population

Schools will be pressured to enroll more minority students because there will be more minority students in America. The Census shows that the U.S. population is becoming more and more diverse. The fastest growing population—Hispanic/Latino—has already made an impact on schools in certain areas. For example, the California system continuously has a relatively large percentage of Hispanics in their freshmen class (up to 22% in 2010). Pressure by these increasing populations will compel schools to find ways to be more accommodating.

But I acknowledge that more minority adolescents will not necessarily mean more minority students in college. The reality is that other factors, including poverty, imprisonment and death, blur this route. It is possible that although the minority population will be significant, the amount of students able to apply to college will still be small. Despite these troubling facts, however, the number of minority students will not be negligible and schools will have to find ways to meet these demands.

Pressure from Within

Not only will schools have to accommodate the growing outside minority populations, but they will also have to cater to their current minority students and alumni. Many schools have tried, aggressively, to recruit minority students. And for many, their outreach has paid off. They have more numbers. But with an increase in minority representation comes an interest in keeping the attrition rate down. These efforts might include more programming, events, and possibly the enrollment of more minorities.

These demands will grow, and have grown, as the minority student populations get larger. As a result, schools have created majors and minors focused on African American studies, Latin American and Latino studies, Asian American studies, etc. They have also established multicultural centers and dedicated weeks or months to minority programming.

As the circle of life continues, these efforts are then supported and expected by minority alumni. The importance here is that schools depend a lot on their alumni for various reasons—financial, social, political, etc. Minority alumni will leverage their support and contributions for a more extended effort to recruit minorities to their alma mater.

Contributions from alumni and voiced oppositions from their student body can really make or break administrative decisions. However, in reality large financial contributions are made by white alumni. Most (if not all) billionaires and CEOs of companies are in the majority. Their money can influence but not necessarily to the advantage of minority students. In the same vein, the voices of minority students may not resonate as much as others. Yet, minority students and alumni are important. Schools will have to answer to them as well as any groups or organizations with which they may be affiliated.

What's Left?

It is beneficial for schools to reevaluate their affirmative action programs. They should constantly evaluate the successes of their methods to increase diversity. And allowing race to be openly considered in admissions policies makes that process more transparent. To an extent, schools are held accountable for their accomplishments and their failures. But most importantly, we acknowledge as a society that a problem of racial discrimination exists in our school systems and we are doing something about it.

This shift towards less transparency and less accountability that would result from abolishing affirmative action programs is consistent with the shift in our society with respect to racial discrimination. Laws and actions are rarely discriminatory on their face. It is usually the nuances and subtleties of their effects that show their true purpose. Yet somehow nobody is responsible for them. The act itself—getting rid of affirmative action programs—is neutral (it means that race will not be used), but underlying it is a false notion that race is no longer a problem in this country. But it is. The sun has not set on racial disparities in schools.

It's worthwhile being technical here. "Affirmative action" is not sufficiently specific. You are speculating about whether the Court might hold that race-conscious admission programs at public universities deny equal protection to white applicants. Such race-conscious admissions programs are remedies for past constitutional violations, designed to prevent future racial discrimination. Defending them on the generalized ground that "diversity is good" turns out to be a poor choice. The argument that the State has a compelling interest in fostering "diversity" sufficient to justify race-conscious admission policies that prefer people of African or Mexican descent to supposedly "more qualified" white people is rejected by many .... white people.

But the State does have a compelling interest in preventing unconstitutional racial discrimination. That persons of Mexican and African ancestry would be discriminated against in all aspects of life in Texas, including higher education, if federal force were no longer applied through the courts, is pretty much apparent to everyone in the world except Tejanos.

What you do not say in this essay's predictive effort to look past a possible decision of the Supreme Court, is that a ruling shortening Justice O'Connor's twenty-five years to ten would result in a heightened interest in making class rather than race the basis for admissions preferences. The cynical effort to use "race neutrality" as a barrier to anti-discrimination reform has depended on the "strict scrutiny" supposedly required to review the equal protection effect of remedial measures design to prevent discrimination. But class-based or poverty-based classification is not subject to heightened scrutiny under equal protection dogma, because capitalism needs to consider it merely "rational" to oppress the poor. So "reverse discrimination" on behalf of the poor is not hard for the State to justify against assaults from reactionary pseudo-equality theory.

Nor do you consider the effect of doctrine such as that you imagine the Court making on its own long-term position in a society that will not be run by a white majority in the next generation. The Republican Party as a whole, not only its Supreme Court justices, are risking their fate if they do not come out of Richard Nixon's white-resentment "Southern Strategy," well as it has worked for them over the last generation, in time to avoid becoming anathema to majority-minority America. John Roberts can see that, I suspect, as clearly as he could see the long-term disadvantages, for him and the Court, in the destruction of the ACA.

So this is a good start, but a little more pressing will take you a good deal farther towards your intended destination.

I would like to continue working with you both on this and other pieces in the future. I still want to learn how to flesh out an idea effectively, edit my work, and be a little more creative. You have really taught me about thinking outside of the box (or opinion) and I want to continue that process throughout my law school career. Thank you.