Online Fisher symposium: In defense of race-neutral alternative jurisprudence

In last week’s Fisher v. University of Texas symposium, the Supreme Court’s longstanding Fourteenth Amendment jurisprudence requiring that universities explore “race-neutral alternatives” before resorting to racial preferences came under attack from commentators across the political spectrum.  From both a legal and policy standpoint,  I believe these critiques are invalid.

• Vik Amar asked: “Why is a percentage plan in which the racial demographics are taken into account in deciding the criteria of admission constitutionally superior to a Harvard-style plus added at the moment when those criteria are applied?”
• Michael Rosman suggested that race-neutral alternative jurisprudence “is hopelessly bollixed” and suggests that the Court “jettison it altogether.”
• Richard Ford wrote: “There’s not a huge difference between considering race as one of many factors, as Grutter allows, and ignoring race but instead considering a host of social disadvantages that highly correlate with race, as the University of Texas did after the Fifth Circuit invalidated affirmative action in Hopwood and as the University of California has done since it was prohibited from considering race by Proposition 209.”

In the minds of some commentators, the two race-neutral alternatives employed by the University of Texas at Austin – a class-based affirmative action plan, giving a leg up to economically disadvantaged applicants of all races, and the Top Ten Percent Plan, automatically admitting students at the top of their high school class – aren’t really race-neutral, because they are aimed at indirectly improving racial diversity.  Moreover, the very success of these plans – UT Austin produced slightly more racial and ethnic diversity with race-neutral plans in 2004 than it had employing race in 1996 – affirms the suspicion that they are not race neutral at all.

But there is an enormous constitutional and policy difference between plans that treat individual students differently based on skin color and those that don’t, a difference which would have struck mid-1960s liberals as obvious but seems oddly confusing to people today.  The 1964 Civil Rights Act could have been written in race-specific terms to outlaw discrimination against blacks, Hispanics, Asian Americans and Native Americans, but it was not; it was written to outlaw discrimination in any direction because the authors knew that there are moral costs to employing racial preferences as human dignity suffers when decisions are made based on an individual’s race.  Dr. Martin Luther King Jr., who recognized the need to remedy our nation’s history of discrimination, nevertheless proposed as a solution a color-blind Bill of Rights for the Disadvantaged rather than a Bill of Rights for Blacks because he believed the fundamental principle of nondiscrimination should not be casually dismissed.

Even those who advocated racial preferences in the 1960s and 1970s did so mostly with the idea that they would serve as a temporary remedy to address historical discrimination – temporary because the great insight of the civil rights movement was that it was fundamentally wrong to decide who gets ahead based on skin color, so that any departure should be time limited.

This did not mean that King and others were oblivious to the racial consequences of race-neutral remedies like a Bill of Rights for the Disadvantaged.  Indeed, King noted that black people would disproportionately benefit from the class-based bill of rights because “Negroes form the vast majority of disadvantaged.”  The fact that economic approaches would benefit  large numbers of people of color was a virtue, and yet, as a matter of principle, King said it was important that “there are millions of white poor who would also benefit from such a bill.”  He continued, “It is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten white poor.”

In the Fisher case, Texas’s race-neutral programs have a positive effect on racial diversity, but there are also enormous practical differences between the class-based and Top Ten Percent plans and the explicit use of racial preferences.  Low-income whites and Asians benefit from race-neutral plans while they are excluded from racial preference programs.  And while these race-neutral alternatives maintain racial and ethnic diversity in the aggregate, the African-American and Latino students who tend to benefit from the Top Ten Percent and class-based plans are far more likely to be low-income and working class than those who benefit from racial preferences.  Indeed, UT Austin complained that the Top Ten Percent Plan was producing too many students who were “the first in their families to attend college.” (p.33)

Race-neutral programs, then, differ both in ends (they produce a more robust economic diversity alongside racial diversity), and means (they avoid apportioning opportunity based on race.)  Richard Ford suggested “university admissions will not change all that much no matter what the Court holds,” but if the Court rules that officers must vigorously employ race-neutral alternatives before resorting to race, that would dramatically alter the current practice of affirmative action.

Georgetown University researchers have found that in today’s society, socioeconomic obstacles are seven times as significant as racial ones in performing well on standardized tests.   Yet research also finds that selective university admissions rely very heavily on race and give little to no consideration to economic obstacles.  A Court ruling which severely constricts the ability of universities to employ race, requiring them first to employ race-neutral alternatives, would reverse this equation, as universities would likely put a heavy emphasis on class and rely on race only as a last resort.

To those who look narrowly at the racial bottom line, the results of race-neutral programs may look similar to those produced by racial preferences.  But for those who believe that there are good reasons that the Constitution disfavors race as a factor in who enjoys the American Dream, and who care about providing genuine equal opportunity that recognizes enormous class-based disparities, the difference between racial preferences and race-neutral affirmative action is profound.