Affirmative action is dead: What should rise in its place?

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For all intents and purposes, affirmative action is dead.

Case in point: A federal appeals court this week rejected a legal challenge in California to bring back race-based policies in student admissions at the University of California. By a 3-0 vote of the Ninth U.S. Circuit Court of Appeals in San Francisco, arguably the most liberal appeals court in the nation reaffirmed Proposition 209, a voter-endorsed ban on affirmative action.

Later this year, the Supreme Court will take up Fisher v. University of Texas, a case that challenges whether applicants’ race can be used as a factor in granting admission in an effort to diversify the student body. And it’s entirely possible the Court will rule against Texas, effectively sealing the coffin shut on affirmative action programs for colleges and universities.

Even if that happens, however, affirmative action could live on, as colleges and employers find ways to continue promoting diversity. In fact, that’s exactly what’s beginning to happen, and it’s absolutely necessary given our nation’s demographic changes.

Regardless of the Court’s upcoming decision, affirmative action opponents have successfully tarnished its name to the point that few are willing to speak it. There’s hardly a college admissions officer or hiring executive willing to boast of an affirmative action plan, even when they openly promote diversity as a key feature of their campus life or workplace.

What this means is that affirmative action — the effort by colleges and employers to foster racial and ethnic diversity in places where it hasn’t traditionally thrived — will surely continue. But it will live by another name, because our demographically-diverse society demands it. Sheer demographic changes dictate that our nation find ways to incorporate a growing group of racial and ethnic minorities among the educated and employed.

Thus, affirmative action, as most of us understood (or more accurately, misunderstood), will surely rise in a reinvented form.

As Richard Pérez-Peña wrote recently in the New York Times, the nation’s colleges and universities are sure to make diversity a vital ingredient in building a student body. “Recent history shows that when courts or new laws restrict affirmative action, colleges try to find other ways to increase minority admissions.”

What those other ways will look like, and how they will affect America’s schools, workplaces, and communities is unknown, and most likely will be subject to fresh debate and court challenges. But now is the time for progressive thinkers and policymakers to consider what laws are necessary to replace the demise of overt, legally-sanctioned diversity programs.

If colleges and employers are intent on finding workaround strategies, this is the moment for reasonable policy suggestions that can proactively structure diversity efforts in the most progressive fashion possible, instead of reacting to what surely will be conservative deconstruction.

Fortunately, some work is already in progress. Writing in The Chronicle of Higher Education, Richard Kahlenberg, a senior fellow at The Century Foundation, draws attention to a post-affirmative-action experiment at the University of Colorado at Boulder. The Colorado study discovered “that using a sizable socio-economic boost [in making admissions decisions], economic diversity increased compared with a system of race-based affirmative action,” Kahlenberg writes, “But, surprisingly, racial diversity also increased, though the sample size was too small to yield a statistically significant result.”

During a conversation about alternatives to race-based affirmative action programs, Kahlenberg explained that, by shifting the focus of diversity efforts away from race to social and economic disadvantages, diversity efforts don’t have to suffer. He also told me that the Supreme Court — even with the current conservative justices — seems to favor class-based approaches to creating diversity. “If structured very carefully,” he said, “it seems that’s a possible way to increase racial diversity on college campuses without overly relying on race.”

But getting there is the challenge, largely because race-based formulations are so politically potent. For progressives, the death of affirmative action is a surefire rallying cry, sending supporters to the polls in support of leaders who share their faith in race-specific programs. And conservatives, of course, love to attack affirmative action to rouse its base. Lost in the hubris on both sides, however, is the ultimate goal of achieving equality for those who have been shut out of opportunities.

If that remains the goal, then now, in the wake of affirmative action’s demise, it makes sense to think about and plan for the best and most promising progressive ideas to achieve the ultimate objective: a fairer America for all.