One year ago this week, supporters of affirmative action cheered as the U.S. Supreme Court upheld factoring race into college admissions.
The decisions in two cases involving the University of Michigan, they said, would ensure racial diversity for many of America’s selective colleges.
But in the months since, some of the sheen has come off their victory. The win came after a decade in which legal uncertainty and public pressure had caused colleges to shy away from the most overt forms of affirmative action, and supporters think some colleges are still gun-shy.
“I’ve been struck by the irony that, in the year since Michigan ... some institutions have retreated from affirmative action even though we won the case,” said Ted Shaw, president of the NAACP Legal Defense Fund. “They have not taken full advantage of what happened.”
Commitment to racial diversity
Few doubt the general commitment to racial diversity of most colleges, even in places like California, where state law prohibits schools from including race as a factor in admissions.
Universities believe their prestige and competitiveness would suffer if they had all-white student bodies.
So how to explain colleges’ lingering caution? Experts point to several reasons, such as legal uncertainty, cost and expectations that affirmative action might one day be abolished:
—Affirmative action remains legally risky. Looking at admissions to Michigan’s undergraduate program and its law school, the court permitted colleges to give a boost to minority applicants, but only as part of a “holistic review” of every application. The court disallowed the use of time- and money-saving formulas that automatically credit race.
Opponents of affirmative action are watching admissions practices closely, requesting records and looking for any signs of schools falling back on those formulas. If they find any, they’ve threatened to sue.
In the last year, the threat of such suits has persuaded a number of schools to cancel or open up summer, orientation and scholarship programs that had explicitly targeted minorities.
The threat of litigation is “cover” for colleges, Shaw said. “They can point to that and say, ’let’s be risk averse.”’
—While the court allowed affirmative action, it didn’t make it easy or cheap. Passing the legal muster of holistic review requires long applications and lots of admissions staffers to read them.
It was a lesson learned this year at a handful of large schools that had previously relied on formulas, including Ohio State and the University of Massachusetts. Those schools vowed to continue affirmative action, but had to hire extra staff.
Many colleges have pledged to spend whatever it takes to comply with the rulings. Still, there is concern that increasingly popular colleges could conclude affirmative action isn’t worth the risk and expense — especially in an era of tight budgets and lukewarm public support.
“It is very tempting for institutional decision-makers ... to say, ’Problem, what problem?”’ said Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers. “’Why do we need to spend more money on admissions? They’re knocking at our doors trying to get in.”’
—Colleges have begun looking ahead. The court indicated it wouldn’t tolerate racial preferences forever, and much of the debate in higher education has shifted to socio-economic affirmative action.
"Race-neutral alternatives"
Many believe admissions boosts for the poor, regardless of race, would be fairer. But for some civil rights advocates, the shift in the debate is alarming. They do not believe socio-economic affirmative action would do enough to help blacks and Latinos.
Affirmative action is legal for colleges but also “high maintenance and riskier than it was before,” said Curt Levey, director of legal affairs at the Center for Individual Rights, the plaintiff that objected to Michigan’s admissions policies. He says that’s precisely why colleges, “while declaring victory” in the Michigan rulings, are looking more seriously at race-neutral alternatives.
If they do that, he said, “no one’s going to attack you.”
—Supporters of affirmative action don’t want to risk their gains. They were pleasantly surprised the court sided with them last year. Now, some may be unwilling to push too hard and attract a lawsuit that could cause a less-sympathetic court to revisit the issue.
“There is a tendency to be somewhat conservative, to stay well within the four corners of the ruling,” said Angelo Ancheta, a legal expert at the Harvard Civil Rights Project.
Most selective colleges would claim there have been few changes because none were necessary. Most had already stopped using racial formulas, and would claim they will continue to do what they’d done before: pursue affirmative action as aggressively as the law allows.
But Nassirian said there are clearly colleges that, if they chose, could now push affirmative action harder — especially in the mostly Southern states where federal appeals court rulings had previously limited the practice more than elsewhere.
Texas responded differently
In one such state, Texas, the two flagship public universities have responded differently to the Supreme Court ruling.
Texas A&M decided not to factor race into admissions decisions even after the court cleared it to do so. The school did, however, expand outreach and financial aid, and expects enrollment increases next fall of 57 percent for blacks and 24 percent for Hispanics.
The University of Texas, meanwhile, said it would begin considering race in admissions this fall. But so far, the school hasn’t announced or instructed admissions staffers how it will do so.
Augustine Garza, UT’s deputy director of admissions, said UT won’t hesitate to use affirmative action assertively.
“We will embrace (affirmative action) as far as the legal lines tell us we can take it, because we know we’ll probably be sued, no matter what we do,” he said.
Shaw, of the NAACP, says he is comforted by what he feels is a broad and deep commitment among educators to diversity, and an overall willingness to spend money on the hard work of doing it legally. He still calls last year’s ruling “a huge victory.”
But he remains worried about the legal uncertainty concerning how the Michigan ruling, which addressed only admissions, applies to scholarships for minorities. And he notes continued skirmishing on the state level.
“We’re much better than we would have been had we lost,” Shaw said. “But it’s one battle, and the war goes on.”