Although many liberals have expressed initial relief that the Supreme Court decision in Fisher v. University of Texas did not kill affirmative action outright, when the dust settles it will become clear that the ruling made it substantially harder to justify race-based affirmative-action programs. The Court adopted a new, higher standard, requiring that judges "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." Unlike the earlier ruling in Grutter v. Bollinger, the Court won't simply take the word of universities that race is a necessary consideration; universities will receive "no deference" on that issue, the Fisher Court ruled. Procedurally, the Justices simply sent the case back to the lower court, but make no mistake: The ability to use race as a qualification for admission has been scaled back by this decision.
Counterintuitive as it may seem, this step back represents a unique opportunity for progressives to back a more profound form of affirmative action based on economic disadvantage. The Court's decision removes a political thorn in the side of America's progressive coalition for more than a generation-affirmative action based on race has been politically problematic for the left from the earliest days because it drove a wedge between natural allies in the fight for fairness. Forty-five years ago this month, Robert F. Kennedy, the last politician to genuinely unite working-class whites, blacks, and Latinos in a powerful coalition, was assassinated. The train carrying RFK's body from New York City to Washington, D.C. was greeted by an outpouring of working-class people of all races who came to pay homage to their fallen hero.
About the same time, affirmative-action policies were created to boost African-American representation at leading universities-both as amends for our nation's brutal history of exclusion and as a way of creating a diverse educational environment for all students.
The motives were noble, but the policies never won over a majority of Americans, many of whom thought the whole point of the civil-rights movement was that race should not matter in who gets ahead. A recent NBC/Wall Street Journal poll found that support for affirmative action had fallen to a historic low. And a Washington Post/ABC News survey found that by 76 percent to 22 percent, Americans oppose "allowing universities to consider applicants' race as a factor in deciding which students to admit." Even Democrats opposed the practice by 69 percent to 28 percent.
Racial-preference policies particularly stick in the craw of the working-class whites-people who, as President Obama noted in his 2008 address on race in Philadelphia, "don't feel that they have been particularly privileged by their race."
Indeed, it is hard to imagine a policy more likely to get working-class whites to align with Republicans than one that purposefully divides beneficiaries by skin color rather than economic status-thereby encouraging these individuals to vote their race rather than their class.
Universities, seeking to accomplish what Yale law professor Stephen Carter has called "racial justice on the cheap," implemented policies that mostly benefited upper-middle-class students of color. (Eighty-six percent of African Americans at selective colleges are middle or upper class-and the whites are even more affluent.) Although universities give lip service to socioeconomic diversity, careful research suggests most have not pursued it.
Many progressives will be tempted to simply denounce the Supreme Court's higher standard in Fisher, just as President Obama properly denounced the Citizens United decision giving new power to corporations in elections. But that would be a mistake, both because polling suggests a strong majority of Americans are likely to support the Supreme Court's decision in Fisher and because it would be far more constructive to use this political moment to build a new-and better-affirmative action based on class.
If a majority of Americans don't like racial preferences, they also don't want universities to become overwhelmingly white and Asian-something that would happen, studies predict, if race is eliminated from admissions decisions and not replaced with any alternatives. In virtually all eight states that banned racial-preference policies-six by referenda, one by legislation, and one by executive order-the political will existed to replace racial affirmative action with class-based preferences. There were also plans to increase financial aid and build new partnerships between universities and high poverty secondary schools to better prepare students. In some cases, the elimination of legacy preferences that benefit the largely wealthy children of alumni was on the table. Taken together, these policies produced both considerable racial and economic diversity. In a 2012 study I coauthored with Halley Potter, "A Better Affirmative Action," we found that in 7 of 10 leading universities that dropped consideration of race and employed alternatives, the proportion of black and Latino representation remained the same or rose. And the three exceptions-U.C. Berkeley, UCLA and the University of Michigan-are all universities that draw on a national pool of applicants and faced an unlevel playing field in trying to recruit minority students while their competitors (Stanford, The University of Virginia) could continue to use race.
Now on a national level, the conservative Roberts Court decision creates a unique opportunity for the enactment of liberal policies that will have far broader public support than racial preferences ever had. For example, polling going back several years finds that Americans support preferences for low-income students of all races by about two to one. The public understands that economically disadvantaged students (a disproportionate share of whom are black and Latino) face extra obstacles.
President Obama should use the Fisher decision as an opportunity to establish a commission to explore ways to promote diversity in light of Fisher and to push hard for legislation in Congress that replicates plans in states where affirmative action has been banned in the past. California, Washington, and Michigan universities began giving new weight in admissions to economic disadvantage and began reaching out to develop the talent pool in low-income high schools. Congress should pass legislation to provide incentives for universities to recruit, admit, and enroll greater numbers of low-income students of all races. It should increase financial aid in order to accommodate greater numbers of low-income students at selective colleges.
With racial preferences curtailed, Congress should move to outlaw legacy preferences at institutions receiving federal funds. This preference based on hereditary status has no place in a 21st century American meritocracy.
In the current political climate, Republicans are unlikely to go along with anything that President Obama supports. But, here, Obama would be advocating an idea that conservatives have long said they champion: a leg up to students based on economic disadvantage, not race. At the very least, calling their bluff would put Republicans in the awkward position of opposing what they claim to support.
In the post-affirmative action environment in states like Florida, Republican Governor Jeb Bush promoted progressive policies-including big increases in financial aid-to prevent resegregation of higher education. In Texas, George W. Bush signed legislation to downplay test scores and admit a new host of working-class high school students of all races to U.T. Austin. And in years since, the legislation has been supported and defended by an unlikely coalition of white Republican rural legislators and black and Latino Democratic urban lawmakers.
Ironically, a conservative Roberts Court decision on race may pave the way for a whole host of socially progressive policies based on class that turn a political liability for the liberal coalition into something that advocates can openly and proudly champion.
