The Affirmative Action Trap

For a Democratic administration to support racial affirmative action -- as the Obama administration is doing in a contentious lawsuit challenging the University of Texas at Austin's racial-preference admissions policy -- may seem natural and predictable. The administration filed an amicus brief with the Fifth Circuit Court of Appeals, siding with the university in a lawsuit filed by two white students. But given President Barack Obama's past rhetoric on the issue, the decision to enter the fray is somewhat surprising -- and fraught with political danger.

As a candidate, Obama sent mixed signals on affirmative action, sometimes suggesting support for the policy and other times suggesting that he was willing to place a greater emphasis on helping economically disadvantaged students of all races. When asked by ABC's George Stephanopoulos whether Obama's own daughters deserved affirmative action in college admissions, Obama replied that no, his daughters should "be treated by any admissions officer as folks who are pretty advantaged," and said furthermore that "we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed."

Likewise, in his legendary speech on race in Philadelphia, Obama acknowledged the history of discrimination in this country that undergirds the moral argument for affirmative-action plans but added that working- and middle-class whites might resent them. Obama declared that the resentments are not "misguided or even racist" but rather are "grounded in legitimate concerns." More recently, as president, when he was pressed to take action to address high rates of black unemployment, Obama responded, "I can't pass laws that say I'm just helping black folks. I'm the president of the United States. What I can do is make sure that I am passing laws that help all people, particularly those who are most vulnerable and most in need. That in turn is going to help lift up the African American community."

What's striking is that Obama's stated goal -- we should help disadvantaged people of all races -- is precisely for what the plaintiffs in the University of Texas case are arguing and what the Obama administration has now sided against.

On the merits, the decision doesn't make sense given that students of color will do almost as well under a program to help the economically disadvantaged, and most universities won't move forward to help low-income students unless forced to as an indirect way of promoting racial diversity. With a broad enough socioeconomic admissions program, university's can recruit more minority students.

But class-based affirmative action requires diverting funds to financial aid and away from things like faculty salaries. So universities almost always prefer to go straight for racial diversity, which gives them more discretion and can also involve recruiting economically advantaged students of color. Diversity is a worthy goal, but colleges don't always concentrate on recruiting the neediest students on their own. In their approach, universities are stunningly out of touch with public opinion, which strongly favors a leg up to disadvantaged students of all races.

UT's hybrid strategy is the result of past legal challenges. In 1996, the Fifth Circuit struck down the use of race in admissions decisions in the Hopwood v. Texas case. In response, the university developed a two-pronged, race-neutral diversity strategy. Administrators gave a leg up to economically disadvantaged students and looked at grades and test scores in the context of several factors including "socio-economic status, whether the applicant is from a single parent home, language spoken at home, family responsibilities, socio-economic status of the school attended, and average SAT or ACT score of the school attended in relation to the student's test scores." In addition, Texas adopted the "Top 10 Percent Plan," under which all students in the top 10 percent of their high school class in Texas could automatically enroll in UT Austin. The use of these race-neutral alternatives produced a freshman class that in 2004 was 4.5 percent African Americans and 16.9 percent Hispanic -- beating the 4 percent black and 14 percent Hispanic representation achieved during the pre-Hopwood days of race-based affirmative action.

After the U.S. Supreme Court approved the use of race at the University of Michigan Law School in the 2003 case of Grutter v. Bollinger, which nullified Hopwood, UT Austin added race back into the mix (on top of the 10 percent plan and class-based affirmative action). That prompted the new lawsuit, in which the two white students argue their civil rights were violated. Under the new plan, the freshman class in 2008 was 5.6 percent black and 19.9 percent Hispanic -- a fairly small marginal gain in racial diversity over the race-neutral plan, in light of the potential political costs.

Though the plan seems to follow the guidelines laid out in the Michigan case, the Texas case is likely to make it to the U.S. Supreme Court, where there appear to be five votes to strike down the plan to consider race. Justice Anthony Kennedy, who dissented in the University of Michigan case, is now the swing vote. In a 2007 case involving racial-integration plans in primary and secondary schools in Seattle and Louisville, the conservative majority struck down the use of race, a worrying precedent for supporters of affirmative action.

Obama's embrace of the side likely to lose may prove politically costly. Fairly or unfairly, American voters seem to place special constraints on America's first black president when it comes to issues of race. During the campaign, Obama's most vulnerable moment came over his relationship with the controversial black minister Jeremiah Wright. Later, when Obama denounced that the arrest of black Harvard Professor Henry Louis Gates in his own home, Obama dropped seven points among whites in a Pew poll, prompting the White House to convene the famous beer summit, with Gates and the white arresting police officer, Sgt. James Crowley. This political reality raises questions about why, in the Texas case, given the chance to endorse a plan that specifically addresses economically disadvantaged applicants, the administration instead chose to support a race-specific plan.

Aggressively pursuing class-based affirmative action could not only result in more students of color without the political costs, but it will address a very serious problem in American higher education. According to a 2004 Century Foundation study, at the most selective 146 institutions, 74 percent of students come from the most advantaged socioeconomic quarter of the population, and just 3 percent from the least advantaged quarter. In other words, one is 25 times as likely to run into a rich kid as a poor kid on the nation's selective campuses.

Interestingly, it may be conservative U.S. Supreme Court justices, in tandem with a liberal U.S. president, who finally prompt American higher education to address its class problem.

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