Why Affirmative Action Still Matters

This fall, the Supreme Court will hear oral arguments in Fisher v. UT Austin, a case that will determine the future of affirmative action in the United States. As the Obama administration was preparing to issue its position in the case, Richard Kahlenberg wrote a provocative piece for The New Republic arguing that Obama should take this opportunity to "move the Democratic Party beyond the political morass of racial preferences" and to support "class-based, rather than race-based, affirmative action." The brief the administration submitted last week, however, did not follow Kahlenberg's advice. And this, I believe, a good thing. UT Austin's affirmative action is reasonable public policy that is perfectly consistent with the Constitution.

Kahlenberg is certainly correct that economic disadvantage should be an important consideration considering a university applicant's credentials. But it is important to note, as the Obama administration's brief emphasizes) that UT Austin's admissions criteria do not consider race in isolation but (in keeping with the requirements laid out by the Supreme Court in Grutter v. Bollinger) uses race as one factor in the holistic consideration of an applicant.

After 10 percent of every Texas high school class is granted admission, students applying for the reminder of spots in UT's entering class are subjected to analysis that considers a wide variety of factors, of which race is only one. Class is certainly and extremely important barrier to educational opportunity. But race still affects socioeconomic outcomes. The effects of centuries of slavery, Jim Crow, and less formal forms of discrimination did not vanish upon the enactment of the Civil Rights Act. Indeed, as Kahlenberg concedes, "[c]ontrolling for income, black families have a lower net worth on average, and black children are more likely to live in high poverty neighborhoods." This is precisely why it doesn't make sense to ignore race entirely.

As the admininstration's brief notes, a candidate's race may still provide "necessary—and illuminating—context for evaluating the applicant's achievements." In response, Kahlenberg argues that class-based affirmative action can indirectly lead to racial and ethnic diversity, and in some cases this is true (although UT Austin's campus became more racially diverse after purely class-based affirmative action was abandoned in 2004, and African-Americans and Hispanics remain substantially underrepresented at UT's flagship campus.) But attempting to use class as a proxy for race creates perverse incentives: for example, if states achieve less racially segregated high schools they will be required to have less diverse state universities. (UT's "Top 10" program increases racial diversity only because high schools in Texas are so segregated and unequal.) It makes much more sense to consider race and class together rather than entirely ignoring the former.)

Even if we assume for the sake of argument that Kahlenberg's preference for purely class-based affirmative action is the better public policy, this is not the question the Supreme Court is considering. What the Supreme Court will be determining is not whether the UT Austin affirmative action program is optimal public policy but whether it is constitutional. And on this question, the Obama administration's position is clearly correct. As Justice John Paul Stevens put it, "[t]here is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination."

Nothing in the text, history, or structure of the equal protection clause of the 14th Amendment requires the Supreme Court to treat Jim Crow laws and UT Austin's admissions system as being constitutionally equivalent. In the almost 150 years since the ratification of the 14th Amendment, no Supreme Court has ever held that the 14th Amendment requires absolute "color-blindness." From an originalist standpoint, it is clear that affirmative action policies are constitutionally permissible (even if the self-described "originalists" on the Supreme Court have decided to subordinate their stated constitutional principles to their political preferences.) And for those of us who are not originalists, it should be evident that UT Austin's admissions system does not contradict the text of the 14th Amendment and is more consistent with its underlying purpose than the alternative of requiring the state of Texas to ignore the effects of racial discrimination entirely. Moreover, a determination that the 14th Amendment requires that states be entirely "color-blind" would likely undermine class-based affirmative action.

If the Supreme Court holds that UT Austin's holistic admissions policy is unconstitutional, it isn't clear that the policy guaranteeing admission to the top 10 percent of every high school class would survive constitutional scrutiny in the long run either. Unfortunately, it is overwhelmingly likely that the Roberts Court will accept the ahistorical argument that the 14th Amendment requires an entirely "colorblind" Constitution. If this happens, Kahlenberg's proposals for entirely class-based affirmative action will be the best remaining alternative, and hopefully it can be crafted in ways that will survive inevitable legal challenges. But the Obama administration's position is right on the merits: the admissions policy of UT Austin does not violate the 14th Amendment and should be upheld.

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