Justices Bury their Heads on Diversity
by UCLA IDEA
Week of June 24-28, 2013
On Monday, the U.S. Supreme Court issued a ruling that will make public universities take a tougher look at their affirmative action admissions policies. In a 7-1 opinion, the court said the University of Texas may consider a student’s race, but only if it can show there is no other “race neutral” strategy to achieve campus diversity.
Fisher v. University of Texas arose from a lawsuit filed by white student Abigail Fisher, who claimed she was denied admission because of her race. The university system admits roughly the top 10 percent of students from every high school, and about three-quarters of freshmen from Texas are admitted under this Top 10 program.
The remaining quarter of students are considered within a holistic review process that looks at a wide array of factors, including race and ethnicity (New York Times, Huffington Post). It’s this quarter of students, some of whom are minorities attending very high-performing schools, who are most likely to be affected by Fisher because they might miss the 10 percent cutoff even though they are well qualified. The Supreme Court’s decision did not reject affirmative action in principle, but sent the plan back to the Texas court which must now determine whether the university used all possible race-neutral methods to meet its diversity goals.
Although Fisher is disappointing for advocates of education justice, it did not refute the legitimacy of universities’ diversity goals as laid forth in the landmark Gruder v. Bollinger ruling that claimed the University of Michigan had a compelling interest in promoting diversity (Washington Post). Thus, the Court stopped short of abolishing affirmative action as California did with Proposition 209. And as some feared it would in Fisher. It remains to be seen if the courts will allow or require Texas to take that final step.
If the rest of the country wants to know what's in store for college diversity in Texas after Fisher, California offers a sobering caution for the future. In 1996, California voters approved Proposition 209, which prohibits the state from considering race, ethnicity or sex in decision-making for public employment, contracting or admissions into public universities. A 2006 report by UC/ACCORD and UCLA IDEA found that, 10 years later, the representation of Latinos, African Americans and American Indians had decreased significantly, even as these student groups comprised a larger share of high school graduates.
And today, the numbers still haven’t recovered. There remains a substantial gap between the racial composition of California’s public k-12 schools and its public universities. In 2008, African Americans made up 7 percent of California’s 8th grade population, but five years later this cohort had shrunk to only 4 percent of students enrolled as freshman at a University of California campus. Latinos constituted more than half of California’s 8th graders in 2008, but only a quarter of first year freshman enrolled in a UC in fall 2012.
“The record shows we tried pretty much everything that seemed feasible,” said Patricia Gándara, UCLA education professor and co-director of the Civil Rights Project. “The university tried to be responsible in this. But the diversity challenge is getting more and more difficult” (Washington Post).
A large part of what makes achieving diversity in higher education so difficult is that our k-12 public schools in California and many other states remain segregated and unequal. And that point highlights the irony of the Supreme Court’s call for race-neutral strategies in admissions—an irony that was not lost on Justice Ruth Bader Ginsburg. As the lone dissent in Fisher, Ginsburg wrote that “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” Admitting the top students from each school provides for a diverse and able student body, but it does so only because Texas’ k-12 schools are highly segregated. “It is race consciousness, not blindness to race, that drives such plans.”