Any day now, the U.S. Supreme Court will answer a fateful question: Does the Constitution’s guarantee of equal protection under the law still allow universities to take race into account when they decide which applicants to admit?
The issue has resonance for Ohio, whose flagship state university operates one of the nation’s most successful affirmative action programs. It has special relevance for the University of Michigan, whose race-conscious admissions policies led to a landmark ruling by the Supreme Court a decade ago and are the subject of a case before the high court now.
For 35 years, the Supreme Court has ruled that universities can use race as one factor in admissions. But it can’t be the most important factor, and such consideration must serve a compelling interest and be as limited as possible.
If universities are to continue to give students the education they need — one that will prepare them for the increasingly diverse workplace and society they will join — the court needs to maintain the sensible precedent it has set.
The betting, though, seems to be that the court will use its ruling in a case from the University of Texas at least to restrict universities’ use of racial preferences. And if opponents of affirmative action had their way, the justices would strike down such preferences entirely. The emphasis in broadening student diversity, they argue, should be on class or income instead of race.
A cover story in the Economist magazine this month proclaimed: “Time to scrap affirmative action” — not just in America, but around the world. In a 2007 opinion, Chief Justice John Roberts wrote, more glibly than incisively, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Advocates of affirmative action — not only on campus, but also in private corporations, the American military, and government hiring and contracting — argue that it is in the interest of their institutions, and the nation, to continue to expand opportunities for members of historically disadvantaged groups. In atoning for past injustices, we help diminish their legacy.
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At a large, diverse institution of higher education, says Ohio State University President E. Gordon Gee, students routinely learn more from each other than they do in lecture halls.
“The 150 hours that our students spend each week outside the classroom are more important than the 18 hours they spend in the classroom,” President Gee told me last week. “They need to be exposed to, and to debate, ideas from different perspectives. If everyone thought and looked like me, this would be a pretty boring place.”
In the case before the Supreme Court, Abigail Fisher, a white woman, sued the University of Texas after she was denied admission in 2008. She claims she was passed over in favor of minority applicants with poorer academic credentials.
University of Texas officials say they seek to achieve a “critical mass” of minority students. The university automatically accepts the top 10 percent of students from every Texas high school — a pool that did not include Ms. Fisher. It fills out the remaining 20 percent of its student body by making individual assessments of other applicants on a broad range of factors, including grades, extracurricular activities, and race.
Ms. Fisher argues that the Texas system effectively sets a quota for admission of minority students, which the Supreme Court has said is unconstitutional. Her argument echoes a common criticism of race-conscious admissions programs: that they are as discriminatory as the historical conditions they are designed to redress.
Other critics go even further, contending that affirmative action harms many of the minority students it is intended to help. Too often, they say, such students are admitted to schools where they are unprepared to compete, and fail to graduate.
But that need not happen, as Ohio State’s experience shows. One out of every seven of the 56,000 students on OSU’s main campus in Columbus belongs to a racial or ethnic minority. African Americans are the largest minority, at 6 percent.
President Gee notes that the university retains 92 percent of its students after their freshman year. It graduates 82 percent of its undergraduates within six years — an all-time high and well above the national rate of 57 percent. And Mr. Gee adds that minority students graduate at rates at or above OSU’s overall average.
“Inclusion is in our DNA,” he says. “We don’t have quotas — we have high expectations. We recruit widely to achieve a broad-based population. We promote senior leaders of color and women. Certain things are fundamental to the core of our educational experience, and diversity is one of them.”
The Texas case gives the Supreme Court the opportunity to revise, or overturn, its ruling in a 2003 case involving the University of Michigan’s law school. In that case, the high court upheld admissions policies that favored minorities because race was not the determining factor.
In 2006, Michigan voters approved an unfortunate ballot proposal that forbids officials of state universities from discriminating against, or giving preferential treatment to, students based on race, ethnicity, or sex. Nine other states have similar bans.
Last year, a federal appeals court declared the Michigan proposal unconstitutional, claiming it prevents advocates of affirmative action from seeking to affect the policies of individual state universities. Backers of the ballot proposal challenged that ruling, and the Supreme Court took the case.
Justice agreed to hear arguments this fall. So no matter what they do in the Texas case, the issue of affirmative action in higher education will remain before the court, and the country.
In her majority opinion in the earlier University of Michigan case, then-Supreme Court Justice Sandra Day O’Connor said the court expected the nation to make enough progress within 25 years that it would no longer need racial preferences. It’s an appealing sentiment.
But that day has not arrived, and it may not arrive in another 15 years. Until the nation eradicates its legacy of discrimination, merely wishing for color-blindness will not achieve it. Affirmative action still works.
David Kushma is editor of The Blade. Contact him at: firstname.lastname@example.org or on Twitter @dkushma1
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