The Supreme Court’s decision to hear oral arguments in Fisher v. University of Texas is undoubtedly a death-knell for race-based affirmative action in university admissions.
After all, Anthony Kennedy, the most moderate member of the bloc of five conservative justices that dominates the Roberts Court, voted to strike down the University of Michigan Law School’s race-based affirmative action program in Grutter v. Bollinger (2003).
Moreover, in the eight years since a 5-4 majority on the Rehnquist Court voted in the Grutter case to permit public universities to continue to use race as a factor in admissions, the new conservative majority has voted to strike down affirmative action programs in public sector employment. So, how will the end of race-based affirmative action in university admissions affect the African-American community?
Although no one can posit precisely what will happen in the future, social scientists have generated a wealth of data on affirmative action programs over the last decade that leave us in a very good position to make predictions about the world after race-based affirmative action.
One thing that we know for sure is that the vast majority of African-American students applying to college the next few years will not be affected by the ruling in the Fisher case.
On first glance, this might sound like good news. Upon closer inspection, however, it becomes clear that the limited impact on African-American students is a function of how deeply entrenched race-based educational and economic inequalities are in our society and how weak existing affirmative action programs have been in addressing these problems.
Social scientists have known for decades that affirmative action programs really only matter at the top ten to fifteen percent of the more than 3,500 colleges and universities in America. This is so because it is only at these 350 to 500 institutions of higher education where the gap on standardized tests between white students and their counterparts from traditionally underrepresented groups is large enough to warrant the use of race-based affirmative action.
We know through several recent students that somewhere between 85 and 90 percent of African-Americans enrolled in college today are matriculating at institutions that are not competitive enough to utilize race-based affirmative action in admissions. In other words, race has played almost no role in the admissions process for the vast majority of African-American college students.
This fact and the troubling reality that most African-Americans of college age never get anywhere near one of our institutions of higher learning work in tandem to explain why the black community does not respond challenges to race-based affirmative action programs with the same vigor that they approach other crises in race relations.
The fact that most African-Americans have not benefited from affirmative action programs in university admissions and does not reduce the cause for alarm about a negative ruling in Fisher v. University of Texas. This is so because life after race-based affirmative action in university admissions would undoubtedly reduce the likelihood of the next Barack Obama (Columbia and Harvard Law), Michelle Obama (Princeton and Harvard Law), and Sonia Sotomayor (Princeton and Harvard Law) placing their stamps on America society from perches of leadership within governmental institutions, corporate America or the media.
By making this claim, I am in no way suggesting that they were admitted to Columbia, Princeton and Harvard Law School because of their race. Despite Ms. Fisher’s claims before the court, no one is ever admitted or rejected from an elite university solely because of their race in the post-Civil Rights era.
Instead, my point is that these three Americans — who all had distinguished academic records during their matriculation at their respective institutions — are emblematic of the ten to fifteen percent of the population of African-American and Latino students who gain admission to the elite schools where affirmative action matters.
What we know about these students is that they come from diverse backgrounds. Many, like President Obama, are the children of black and brown immigrants with high educational attainment who came to the United States in the wake of the 1965 immigration reforms. Others, like Michelle Obama, are the children of hard-working African-Americans who clawed their way into the middle class in the wake of the Civil Rights and Voting Rights Acts.
And some, like Justice Sonia Sotomayor, come from working class backgrounds. Despite their diverse origin stories, recent studies tell us that the underrepresented minorities who make it to the colleges and universities where affirmative action matters tend to share three traits.
First, a majority of these students are clustered in the bottom quartile of the income distributions of their colleges and universities. Second, in light of their socioeconomic status, many of these students have significantly over performed on the SAT. This is so because the open secret of college admissions is that the SAT is highly correlated with household income.
So, by ruling against race-based affirmative action in Fisher v. University of Texas, the conservative majority on the Supreme Court would simply be punishing the most economically vulnerable portion of the enterprising tenth of African American and Latino students who have bootstrapped themselves to SAT scores within striking distance of admission to Ivy League schools even without race-based admissions. Indeed, we know through statistical simulations that 50 percent of these incredibly hard-working and talented students will disappear from future classes at the elite institutions where affirmative action matters.
On first glance, this might not sound like a big deal. And this is precisely the reason that I raised the examples of President Obama, the first lady, Michelle Obama, and Justice Sotomayor. The fact of the matter is that there is no way for us to know which members of the enterprising tenth would be among the 50 percent of the population of underrepresented students who would be culled under race neutral admissions programs without looking at the records of every student admitted and rejected in an application cycle.
There are a multitude of reasons why we will never get this data; and paramount among them is the fact that the last person admitted to these schools is typically not the underrepresented minority or athlete but a white student, dripping with privileges accrued over generations, who has been given special consideration because their families have donated money to the institution through a process euphemistically called “development admissions.”
So, when thinking about whether or not we should care about the Supreme Court striking down race-based affirmative action, close your eyes and imagine a world where bootstrappers like President Obama, Michelle Obama and Justice Sotomayor are 50 percent less likely to have attained the educations that helped them attain their vaunted positions in American society.
Also imagine that in this same world practices with racially disparate impacts like legacy and “development” admissions will continue to give men like former President George W. Bush and Senator John McCain smooth transitions into the nation’s best universities despite their merits. No matter what the Roberts Court says, racial justice is not achieved by turning the clock back to pre-Civil Rights America.