No End In Sight

Casually stroll into the admissions office of Yale University, and you’ll be greeted by a wall of crisp-cornered pamphlets.  Each, a glossy snapshot of what the college experience should be, swiftly introduces the visitor to one of Yale’s biggest draws: its diversity.  Groups of multiracial students are splashed across the covers, laughing around a library table or sprawled spread-eagle on a grassy quad, purposely drawing attention to Yale’s melting pot student body.

Many students today would be surprised to discover that the school was built more than three hundred years ago because its founders felt Harvard (the only other college nearby) was becoming too liberal.  Harvard’s then-President Increase Mather was appalled by the relative laxness of the school’s clergy-ministers, and he sought to develop Yale as a fiercely Puritan school composed of the traditional landed gentry.  Women, Jews, Catholics, and, of course, racial minorities needed not apply.

Mather certainly would not have approved, then, of the policies instituted more than 250 years later by Kingman Brewster, who was President of Yale University from 1963 to 1977.  “I do not intend to preside over a finishing school on Long Island Sound,” Brewster famously said, announcing a series of dramatic changes to Yale’s lily-white student body.

Instrumental in Brewster’s efforts was his 1966 decision to institute need-blind admissions, which precluded the University from considering an applicant’s ability to pay tuition.  Yale also adopted one of the nation’s most aggressive affirmative action policies, under which race played a prominent role in admissions decisions.

“Yale wants to train the very best within the black community. We’ve got to turn out the black leaders of the future.  The Martin Luther Kings of this world are going to come from Yale,” Brewster used to say at gatherings of alumni, according to a 2004 book by former Yale professor Geoffrey Kabaservice.

Slowly but surely, the number of minority students at Yale began to creep up.  Decades later, Brewster’s attempts to recruit not just blacks, but women, other racial minorities and students from underrepresented geographic and socioeconomic backgrounds, appear to have paid off.  Four in ten students in Yale’s class of 2016 identified as minorities.

In 2012, President Richard Levin told the Yale Daily News that Yale “has practiced affirmative action in admissions since the 1960s and will continue to do so as long as it is consistent with the law of the United States.”  Indeed, thanks to Yale’s robust financial aid and affirmative action policies, it seems unlikely Yale will soon return to the white-washed era of Frank Merriwell and Dink Stover.

Or will it?

***

Before the end of June, the Supreme Court will release its decision in Fisher vs. University of Texas, a ruling that will likely mark the Court’s most significant foray into the battle over race-based affirmative action in a generation.  Fisher, named for a white student who claims she was denied admission to UT due to the school’s consideration of race, challenges the university’s watered-down affirmative action policy.

Before a 1996 federal court decision, the University of Texas often used skin color as a significantfactor in determining its student body.  Today, however, UT’s admissions system is far more complicated; a “top 10% track” admits all Texas applicants who rank in the top decile of their graduating high school class.  In addition to this straightforward policy, the university employs a “Personal Achievement Index” (PAI) and an “Academic Index” to evaluate and admit students based on a variety of other factors.  One criterion included in the PAI is race.  UT characterized the use of race in admissions decisions as “a factor of a factor of a factor of a factor.”

Indeed, most minority students are admitted to the university through the “top 10% track,” not the secondary method.  In this sense, even a ruling eliminating the explicit consideration of race will not dramatically impact the university’s enrollment.

Across the country, in fact, few students are significantly impacted by affirmative action.  Only a fraction of the nation’s thousands of institutions of higher learning even have affirmative action policies, and at even those schools, race is just one ingredient in a brimming pot of application details.  “The spaces taken by students admitted via affirmative action were negligible,” Steve Montiel, a spokesman for University of California President Mark Yudof, told The Politic regarding the system’s admissions.  Nonetheless, the affirmative action debate remains one of America’s hottest political topics.

It was some 35 years ago, in 1978, that the Supreme Court first ruled in University of California v. Bakke that race may be included as one factor in an individualized, holistic evaluation of a university applicant.  In 2003, Justice Sandra Day O’Connor reiterated this position, writing in Grutter v. Bollinger that race may be used by institutions of higher education as part of a case-by-case review of an applicant.

Less than a decade later, however, O’Connor’s Grutter opinion is teetering on the verge of irrelevance.  Her 2006 retirement, and the subsequent appointment of Samuel Alito, who has spent decades itching to illegalize affirmative action, has lurched the Court substantially rightward.

The Court has three principal options in how it can rule in Fisher.  First, it can uphold (with at least a four-four split, given Elena Kagan’s recusal) the constitutionality of the university’s admissions policy.  Second, it can further limit the permissible scope of affirmative action in college admissions, ruling that UT’s approach is not valid under the precedent established in the Grutter decision, narrowly construed.  Third, it can overrule Grutter, declaring that the consideration of race in admissions policies is unconstitutional.

Although the Fisher case only addresses public education policies, private institutions would also be affected by any Supreme Court decision.  Because nearly all private universities receive some form of federal funding, they too would have to change their admissions policies if the Court rules the consideration of race unconstitutional.

It certainly seems likely — although the Court’s 2012 healthcare decision demonstrates the futility of such predictions — that the four conservative Justices will vote to strike down the University of Texas’ current admissions policy.  At the same time, the three liberal Justices hearing the case seem inclined to uphold the university’s policy.  As is often the case, Justice Anthony Kennedy represents the swing vote in Fisher.

Kennedy’s 2003 Grutter dissent charted a sort of middle ground between O’Connor’s endorsement of the use of race in college admissions and then-Chief Justice William Rehnquist’s dissent, which opined that all race-based affirmative action policies were unconstitutional.  Kennedy agreed with O’Connor that race may be considered to promote diversity, but believed that the Court failed to apply strict scrutiny (as required by Bakke).  According to Kennedy, colleges were treating race as “a predominant factor,” not just “one modest factor among many others.”

In a 2007 concurrence in Parents Involved in Community Schools v. Seattle, Kennedy reiterated this position.  While he believed that the school districts involved had unconstitutionally classified students on the basis of race, he wrote that school officials “may consider it a compelling interest to achieve a diverse student population.  Race may be one component of that diversity.”

As he clearly prefers, Justice Kennedy holds the cards for the Fisher decision.  Both his 2003 and 2007 opinions make clear his belief that racial diversity should not be disregarded entirely.  Given his Grutter dissent, however, it seems likely that he will use Fisher to narrow the scope of affirmative action in admissions policy.

Most legal analysts maintain that such a decision would deal race-based affirmative action policies a potentially lethal blow.  Yet according to several scholars and academics, the Court’s decision, while quite possibly a turning point in legal history, may have little practical impact.

***

Even before the Fisher case, seven states — Arizona, California, Florida, Michigan, Nebraska, New Hampshire and Washington — banned consideration of an applicant’s race in his or her college admission.  In California, for instance, voters approved Proposition 209 in 1996, abolishing affirmative action across the state’s public university system.  The subsequent years saw a dramatically lower minority representation; Latinos fell from 15 percent of newly enrolled students to 12 percent and blacks fell from 4 percent to three percent.

Over time, however, something remarkable occurred.  Despite the abolition of affirmative action, the percentage of minority students in the University of California system began to steadily increase, outpacing even the state’s ballooning Hispanic population growth.  Newly admitted black students returned to the level they had before Proposition 209, while Latino students more than doubled to 25 percent.[i]

“No one has ever been able to measure any reductions resulting from either Bakke or Grutter,” said Richard Sander, a professor at the University of California in Los Angeles and a prominent scholar opposed to affirmative action.  Sander is the intellectual leader of a small but vocal faction of academics that believe the Court’s affirmative action rulings have been wholly inconsequential.

“Even when you have a very clear, absolute rule like Prop. 209, there’s a lot of pressure on universities to evade it, and not much pressure against the evasion,” Sander said.

According to Sander, many UC schools have “evaded” the affirmative action ban by instituting policies specifically designed to enroll more racial minorities.  Several colleges began comparing applicants not with others across the state, but just with students from their own community.  An inner city black kid no longer must compete for the same slot as a J Crew-clad suburbanite, just his or her equally disadvantaged neighbors.

University of California officials have gone even further, giving students some preference if they hail from a particularly low-income neighborhood or ZIP code, which correlates strongly with race.  The colleges have also adopted what they describe as a “holistic approach,” looking past AP scores and National Honor Society commendations to the experiences and challenges faced by each applicant.  Special attention is paid to “first generation to attend college” status, another factor that correlates with race.  Although formally race-blind, these policies quite clearly benefit minority students.

California is certainly not alone in its endeavors, either.  Public universities in Michigan and Washington have also begun holistically evaluating their applicants in the wake of each state’s ban on race-based affirmative action.

For officials at competitive college and universities, there is a clear upside to attracting a multiracial student body, and few drawbacks.  According to surveys of prospective students and parents, a hodge-podge campus is a highly desirable trait.  And an overly beige student body can lead to negative headlines, as well as lower college rankings.

As a 2012 Bloomberg op-ed stoutly put it, “If the Supreme Court sweeps away race-based affirmative action in higher education, it won’t spell the doom of diversity. American institutions are committed to that end.”

***

According to Sander, most of the tangible implications of Fisher “will depend on whether the Court lays down enforceable guidelines.”

“If the Court says, ‘Racial preferences can be no larger than socioeconomic preferences used by a university,’ that would be very significant,” he continued.  “Or if it said, ‘Any university using racial preferences must make available data to students and the public on admissions outcomes,’ that would allow one to determine the weight assigned to race in admissions.”

But Sander and his like-minded peers are skeptical that the Court, coxswained by Kennedy, will act so decisively.  “If they do something like Grutter, universities will simply ignore the decision altogether,” he said.  “Generally, it’s quite inconvenient for universities to figure out a way to violate the law, but Grutter is so vague that it’s very easy to violate.  I mean, you can never be sure if you are violating it.”

As the Deans of Yale and Harvard Law Schools wrote in an October op-ed, “As a practical matter, we do not understand how a rule forbidding all consideration of race could possibly be enforced.  Essays and letters of recommendation are critical components of the application process.”

Charles Geshekter, an affirmative action opponent who was chief advisor to the Speaker of the California Assembly on higher education when Prop. 209 was passed, also rejected the notion that colleges will be forced to substantially change their policies in light of any decision by the Court.

“The only thing that may eventually dissuade them is if potential litigants (students, faculty or staff) bring charges against them and seek damages on an individual basis from university officers,” said Geshekter.

Proponents of affirmative action, however, dispute the numbers put forth by Sander and his colleagues.  Natasha Warikoo, a Harvard School of Education professor, believes that any Supreme Court decision that narrows race-based admissions policies will hurt diversity at top universities.

“There will be dramatic implications for selective colleges and universities, both public and private,” Warikoo said.  “It will be a setback for the move toward racial justice in our country.”

“In the short run, the effect is likely to be a decline in the proportion of underrepresented minority students on the UT campus and many other selective public universities,” agreed Princeton University sociologist Thomas J. Epsenshade.

Yet “if minority enrollment drops substantially, one can hope that institutions of higher education will work hard and collectively to promote the college preparedness of minority students,” said Epsenshade, who has published a series of landmark studies on affirmative action.  “But results are not likely to come quickly, and I suspect that affected institutions will instead resort to more immediate strategies (for instance, giving additional consideration in admissions to having overcome disadvantage) to preserve racial diversity on campus.  At least, that has been the pattern in California, Washington, and Michigan.”

Montiel, the UC spokesman, maintains that even these policies are not equivalent to traditional affirmative action.  “Despite truly heroic efforts to find ‘substitutes’ for race-conscious policies,” Montiel said, “race-neutral policies are not, and will never be, as effective at achieving racial diversity.”

Yet California, with its complicated recruitment policies, has undoubtedly instituted measures that counterbalance — at least to some extent — the state’s Prop. 209.  Indeed, even if the Supreme Court were to ban the consideration of race entirely in the admissions process, it seems likely colleges and universities would still find ways to avoid wholly race-neutral policies.

“The Supreme Court has twice issued rulings on this question — in 1978 and 2003 — and in both cases, I think the authors of the key opinions thought they were restricting race-based preferences.  But there were no tangible effects from either of those opinions,” Sander concluded.

***

Regardless, Yale students are paying attention to Fisher with unusual care for a Supreme Court decision.  Opinion pieces in The Yale Daily News, among other publications, have decried any potential narrowing decision.  Moreover, in an amicus brief supporting UT, fourteen elite universities (including the eight Ivy League schools) asserted their desire for a student body that was “diverse in many ways.”

“Some people don’t realize that private universities will also be subject to the decision…” said Warikoo.  “Previously private universities in states with affirmative action bans were not subject to the legislation, but this will be a federal decision.”

Yale, indeed, does not seem keen to abandon race as a criterion in admissions decisions.  According to Jeffrey Brenzel, Yale’s outgoing Dean of Admissions, in an email to The Politic, “We have in fact taken an affirmative approach to admission of underrepresented minority students, always acting in accord with past judicial rulings.  It would not be possible to say in advance how a change in the judicial context would affect either our admissions policies or the makeup of an undergraduate class.  Much would depend on the specific nature of a change or changes.”

Like schools in California and Washington, however, Yale has already taken steps to blunt the impact of any unwelcome decision.  The Yale Ambassadors Program, for example, sends current students into low-income areas to recruit without explicitly addressing race.  And as the law deans wrote in October, school officials have already begun questioning the real-world practicability of a ruling.

“Admissions policies large and small are under constant review year to year,” Brenzel wrote in a terse follow-up email, “and have never been fixed in stone.”

Yet if recent history is any indication, Yale will find ways to enroll a diverse study body, even if Supreme Court rules against UT in the upcoming Fisher decision.  For better or for worse, affirmative action policies — and the contentious debate they inspire — are likely here to stay.