While the Supreme Court has recently placed stringent limits on institutions of higher education that voluntarily implement affirmative action programs, the window of constitutional permissibility has never been completely closed. That could change, however, if the court sides with the plaintiff in Fisher V. University of Texas, a case argued Wednesday urging the justices to declare, once and forever, that affirmative action is unconstitutional.
Fairness has been a central theme of litigants challenging affirmative action programs. White applicants denied admission have argued that they have been victimized by plans that give their places to lesser "qualified" minority applicants. Under the policy of the University of Texas (UT), a small portion of the entering class is selected through a process that considers race, wealth and income, and other background factors that can give an applicant a slight edge over other similarly qualified applicants. According to Ms. Fisher "there were people in my [high school] class with lower grades who weren't in all the activities I was in, who were being accepted at the University of Texas, and the only other difference between us was the color of our skin."
Yet college and graduate school rejections at highly selective institutions like UT are not so easily categorized. While it is true that UT offered conditional admission to 47 students with lower test scores than Ms. Fisher, she neglects to point out that almost all those students, 42 in fact, were white. UT also rejected 168 minority applicants with grades similar to Fisher's.
More importantly, UT's students are greatly benefited from the school's affirmative action program. Justice Sandra Day O'Connor noted such benefits in 2004 in her majority opinion in Grutter v. Bollinger, which upheld the University of Michigan Law School affirmative action program. Drawing on research identifying institutional and social benefits, Justice O'Connor concluded that diversity among their classmates, "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals."
Sometimes this racial diversity can be achieved through race-neutral methods. But as many schools, including UT, have discovered, adequate racial diversity representing more than mere tokenism cannot be achieved without taking race into account during the admission process. This is because many education practices today, like funding public high schools through local property taxes, continue to disproportionately diminish the pool of minority applicants.
In evaluating the need for improved diversity in admissions, the lengthy and shameful history of excluding minorities should not be ignored. For much of its history, UT, along with many other similarly prestigious schools, deliberately excluded minority students. And today disparities in student racial representation in higher education remain alarmingly wide. For example, a 2013 Georgetown University study revealed that while whites represent less than two-thirds of the college-age population, they make up three-quarters of the students at the 468 most selective four-year colleges. Meanwhile, African-American and Hispanic students make up only 14 percent of students at these selective four-year colleges, even though they represent one-third of college age students. While some of this gap, no doubt, is attributable to the higher percentage of minority youth who drop out of high school or who are entangled in the criminal justice system, discriminatory treatment resulting in excessive suspensions and expulsions or misguided tracking decisions, or the absence of advanced placement opportunities, should not be diminished. The problem is not going away. While there has been growth in attendance by students of all races in higher education, at the most selective colleges, 82 percent of new freshmen were white. Most of the growth in minority students (68 percent of new African-American freshman enrollments and 72 percent of new Hispanic freshman enrollments) were at open-access two- and four-year colleges.
UT's approach to improving diversity on campus is similar to that approved by the court in Grutter. There is no quota, and race is used as part of an individualized, holistic process. The holistic aspect allows UT admission officers to satisfy institutional concerns such as diversity, while the individualized aspect allows for each applicant to be treated fairly. While certainly there are whites who have lost opportunities due to misdirected or overly-broad race-based affirmative action programs, Ms. Fisher should not be so categorized. Fairness requires that applicants not be denied or accepted nor unduly advantaged or disadvantaged solely because of race. Fairness does not mean that universities do not have the flexibility to accept a few minority applicants with lower grades and test scores than a rejected white applicant in order to increase the diversity of the class.
With the country's minority population at its highest ever, and with racial disparities in high school graduation rates alarmingly wide and increasing, the goal of a diverse student body is as compelling today as it was when Justice O'Connor identified it over 10 years ago. We hope the justices remember this fact as they grapple, once again, with issues of racial inclusion in higher education.
Michael Higginbotham (firstname.lastname@example.org) is the Joseph Curtis Professor of Law at the University of Baltimore and the author of "Ghosts of Jim Crow: Ending Racism In Post-Racial America." Matthew Bradford (email@example.com) is a third-year student at the University of Baltimore School of Law.