This fall, the U.S. Supreme Court will hear arguments in Abigail Noel Fisher v. the University of Texas, a case that will revisit the use of race-based affirmative action in college admissions. At issue is whether the University of Texas should have reintroduced racial and ethnic preferences to its admissions formula in 2005 even though the well-established top 10 percent plan was succeeding in enrolling significant numbers of minorities without considering their skin color or ethnic heritage. The case is sure to generate lots of debate, which, if thoughtful and reasoned, should be welcomed in our state and nation.
At the heart of this debate lies a fundamental question: Under what circumstances, if any, should a governmental unit be allowed to give a preference to someone based upon her skin color?
The question in Fisher is directed to university admissions policies, but it applies to employment and public contracting policies, as well.
During the past three decades, as different lower courts have tried to sort out the right answers to this question, they have sometimes produced a body of jurisprudence at war with itself. Nevertheless, the Supreme Court and our Constitution are very clear — and strict — about the use of race by government entities: "good" and "bad" racial classifications and preferences are in the eye of the beholder, so any use of race at all must be for the most extraordinary and critically important reasons. And before resorting to these racial preference policies, government must first try to achieve its objective using a race-neutral means.
Since they were introduced, racial and ethnic preferences have been divisive: They stigmatize recipients, unfairly punish better-qualified individuals, and pit Americans against one another. With this kind of affirmative action, it is not possible that one group can be preferred without another being disadvantaged.
It should not be this way. For our schools especially, there are better means to produce a unique and diverse student body than race-based affirmative action.
As a significant number of scholars have noted, ending race-based affirmative action does not have to result in all-white and Asian student bodies.
In states that have banned using race by voter initiative, legislative statute, or the courts, schools have responded by implementing a kind of "socio-economic affirmative action" to offer a helping hand to economically disadvantaged students regardless of their race or ethnicity.
This "need-based affirmative action," when used with traditional outreach, financial assistance, and academic remediation is fairer. This concept is making inroads in unexpected places: six years ago, in "The Audacity of Hope," President Barack Obama wrote, "An emphasis on universal, as opposed to race-specific, programs isn't just good policy; it's also good politics."
The president is right about this. It can not be reasonably argued today that in the name of diversity, the daughter of a first generation Vietnamese laborer should be penalized in her efforts to gain admission to a competitive college over the daughter of a successful African American lawyer.
There are other compelling reasons to end race-based affirmative action.
During the past five years, social scientists have produced a growing body of research that indicates that racial preferences in higher education actually undermine minority achievement by creating an academic "mismatch" effect.
Students admitted through racial preferences have higher drop out rates and significantly lower grades than non-preference students. This mismatch effect manifests itself especially in science, mathematics, and engineering courses, as evidenced by a recent analysis of Duke University's admissions policies. At Duke, more than three-quarters of incoming black freshmen indicated they intended to major in one of the hard sciences, but more than half switched to less demanding majors, while less than 8 percent of white science majors did.
Let us recognize that thoughtful people will contend that until economic disparities between the races narrow, or vanish, race-based affirmative action will continue to be necessary. But as professor Shelby Steele has argued, race-based affirmative action is problematic in our society because we have demanded that it create parity between the races rather than insure equal opportunity.
A university is more than the sum of its ethnic parts. It is comprised of individuals — black, white, Hispanic, Asian and others — who should be admitted or rejected without their race or ethnic heritage making any difference. Fisher v. University of Texas may speed that result.