Racial preferences are still on the rise

Posted: October 02, 2012

By Richard Sander

and Stuart Taylor Jr.

The Supreme Court is scheduled to hear arguments next week in Fisher v. University of Texas, its first case on the consideration of race in higher education admissions since its 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Why did the court decide to revisit this issue after less than a decade? Much of the speculation centers on a shift in the court; since Justice Samuel Alito replaced Justice Sandra Day O'Connor in 2006, the court is less sympathetic to racial preferences.

But another factor is perhaps as important: Grutter and Gratz laid out a strategy for containing affirmative action that clearly, objectively failed.

In 2003, as today, the court was closely divided on affirmative action. As the "swing" vote, O'Connor played a central role in the decisions. While she had usually voted against racial preferences in areas such as contracting and hiring, she took a different approach on university preferences.

O'Connor held that because of the compelling interest universities have in a diverse learning environment, racial preferences are permissible if they meet specific restrictions: Race must never be the "defining feature" of an application; no group could be "insulated" from competition with other applicants; schools must consider race-neutral ways to pursue diversity; and they must phase out the consideration of race as quickly as possible.

In Gratz, O'Connor joined one set of justices in finding that the University of Michigan's undergraduate admissions had violated such principles by awarding every black and Hispanic student a number of points based on race; but in Grutter, she found that the university's law school, using a more subjective process, did not.

Even when O'Connor wrote the majority opinion in Grutter, there was skepticism about how seriously she took her own restrictions, because aside from the absence of a specific race "formula," the law school seemed to have violated O'Connor's principles at least as much as the undergraduate college. There was, for example, virtually no evidence that the law school had seriously considered race-neutral methods of achieving diversity or given meaningful weight to students' socio-economic backgrounds.

A key question following Grutter and Gratz, then, was whether universities would take O'Connor's words seriously and start to reform their use of racial preferences, or whether they would take the decisions as a signal that court supervision of preferences would be lax. The evidence suggests that most colleges and universities have done the latter; indeed, racial preferences have become greater and more mechanical than before Grutter.

At Michigan's undergraduate college, the school scrapped its point system. But our analysis of its 2006 admissions found that racial preferences were much greater than before. Among Asian American and black students with similar test scores and grades, for example, blacks had a 96 percent chance of admission, compared with 11 percent for Asians. The college used more racial categories after Grutter and paid less attention to socio-economic background.

Our analysis of a sample of public law schools before and after Grutter shows the same pattern: The effective weight given to black applicants based on their race went up at schools around the country, and consideration of nonracial diversity went down. Post- Grutter, many law schools have automatically admitted every black applicant whose test scores and grades meet some minimal threshold, while turning down 90 percent of white applicants with the same qualifications.

We see little room to doubt that universities have taken Grutter and Gratz as a green light to pursue racial preferences more aggressively. O'Connor wrote in Grutter that she expected racial preferences to disappear by 2028. With nine of those 25 years past, and preferences more entrenched than ever, it's not surprising that a majority of the justices think the time is ripe to revisit this issue.

Richard Sander is a law professor at the University of California, Los Angeles. Stuart Taylor Jr. is a Washington journalist. They cowrote "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It."

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