Slides from The Century Foundation's Richard D. Kahlenberg on the state of affirmative action for university admissions in the wake of Fisher v. University of Texas

1. #tcfevents

2. Affirmative Action andAffirmative Action and
FisherFisher – What Now?– What Now?
The Century FoundationThe Century Foundation
Richard D. KahlenbergRichard D. Kahlenberg
July 19, 2013July 19, 2013

3. I. Meaning ofI. Meaning of FisherFisher
 Paradox: A victory for racial diversity and a defeat forParadox: A victory for racial diversity and a defeat for
racial preferences.racial preferences.
 Educational benefits of diversity remain a compellingEducational benefits of diversity remain a compelling
state interest. (No one joined Justice Thomas’sstate interest. (No one joined Justice Thomas’s
concurrence saying no principled distinction betweenconcurrence saying no principled distinction between
today’s arguments for the educational benefits oftoday’s arguments for the educational benefits of
diversity and arguments advanced by segregationists.)diversity and arguments advanced by segregationists.)
 By 7-1, major emphasis on finding “workable raceBy 7-1, major emphasis on finding “workable race
neutral alternatives” to achieving racial diversity. (Noneutral alternatives” to achieving racial diversity. (No
one joined Justice Ginsburg’s dissent which said if goalone joined Justice Ginsburg’s dissent which said if goal
is racial diversity, fine to just use racial preferences.)is racial diversity, fine to just use racial preferences.)

4. FisherFisher not just a “punt”: changednot just a “punt”: changed
the law fromthe law from GrutterGrutter (2003)(2003)
 InIn GrutterGrutter, majority said universities must engage in, majority said universities must engage in
“serious, good faith consideration of workable race-“serious, good faith consideration of workable race-
neutral alternatives” but then deferred to Michigan’s lawneutral alternatives” but then deferred to Michigan’s law
school. “We take the Law School at its word that itschool. “We take the Law School at its word that it
would ‘like nothing better than to find a race-neutralwould ‘like nothing better than to find a race-neutral
admission formula’ and will terminate its race-admission formula’ and will terminate its race-
conscious admissions program as soon as practical.”conscious admissions program as soon as practical.”
 Kennedy dissented inKennedy dissented in GrutterGrutter: Judges should “force: Judges should “force
institutions to seriously explore race-neutralinstitutions to seriously explore race-neutral
alternatives” rather than being “satisfied by the Lawalternatives” rather than being “satisfied by the Law
School’s profession of its own good faith.”School’s profession of its own good faith.”

5. FisherFisher Adopts Kennedy’sAdopts Kennedy’s GrutterGrutter
DissentDissent
 In Fisher, 7-1 opinion says, “strict scrutinyIn Fisher, 7-1 opinion says, “strict scrutiny
imposes on the university the ultimate burden ofimposes on the university the ultimate burden of
demonstrating, before turning to racialdemonstrating, before turning to racial
classifications, that available, workable race-classifications, that available, workable race-
neutral alternatives do not suffice.”neutral alternatives do not suffice.”
 On questions such as whether race-neutralOn questions such as whether race-neutral
alternatives are available “the University receivesalternatives are available “the University receives
no deference.”no deference.”
 To make clear: “Strict scrutiny must not be strictTo make clear: “Strict scrutiny must not be strict
in theory but feeble in fact.”in theory but feeble in fact.”

6. Source: U.S. Supreme Court, Fisher v. University of Texas (2013), Slip Opinion, p. 3.
Supreme Court’s Analysis ofSupreme Court’s Analysis of
Texas’s Race-Neutral StrategyTexas’s Race-Neutral Strategy

7. Predictions on the Viability ofPredictions on the Viability of
Racial PreferencesRacial Preferences
 Higher Education attorney Scott Greytak: “TheHigher Education attorney Scott Greytak: “The
result’s already in. The court did not want theresult’s already in. The court did not want the
headlines of having struck down affirmativeheadlines of having struck down affirmative
action, but has pre-determined the death ofaction, but has pre-determined the death of
race-conscious policies.”race-conscious policies.”
 University of Houston Law Professor MichaelUniversity of Houston Law Professor Michael
Olivas: Affirmative action “lives on, but all of usOlivas: Affirmative action “lives on, but all of us
believe it’s under an impending death penalty.”believe it’s under an impending death penalty.”
 Greytak and Olivas support affirmative action.Greytak and Olivas support affirmative action.

8. II. Race-Neutral AlternativesII. Race-Neutral Alternatives
 What are the leading race-neutral strategies?What are the leading race-neutral strategies?
 How effective are they in producing racialHow effective are they in producing racial
diversity?diversity?
 Is the push for race-neutral strategies a goodIs the push for race-neutral strategies a good
thing or a bad thing?thing or a bad thing?

9. Race-Neutral Alternatives in 9Race-Neutral Alternatives in 9
States where race droppedStates where race dropped
 6 states promoted university partnerships with6 states promoted university partnerships with
disadvantaged high schools.disadvantaged high schools.
 7 states provided class-based admission preferences.7 states provided class-based admission preferences.
 8 states expanded financial-aid budgets.8 states expanded financial-aid budgets.
 In 3 states, individual universities dropped legacyIn 3 states, individual universities dropped legacy
preferences.preferences.
 3 states rewarded high class rank and downplayed test3 states rewarded high class rank and downplayed test
scores.scores.
 2 states adopted stronger programs for transfer from2 states adopted stronger programs for transfer from
community college to four-year institutions.community college to four-year institutions.

10. Do Race Neutral Methods Work?Do Race Neutral Methods Work?
Met or Exceeded Pre-Affirmative-Action-Ban
Representation at 10 Leading Universities
African American Latino
UT Austin (1996) YES YES
Texas A&M (1996) YES YES
UC Berkeley (1996) NO NO
UCLA (1996) NO YES
U of Washington (1998) YES YES
U of Florida (1999) YES YES
U of Georgia (2000) YES YES
U of Michigan (2006) NO NO
U of Nebraska (2008) YES YES
U of Arizona (2010) YES YES

11. Is Emphasis on Race-NeutralIs Emphasis on Race-Neutral
Strategies a Good Thing?Strategies a Good Thing?
 UnderUnder FisherFisher, guaranteed racial diversity one way, guaranteed racial diversity one way
or the other: from alternatives (if they work) oror the other: from alternatives (if they work) or
by using race (if alternatives are insufficient.)by using race (if alternatives are insufficient.)
 Promote social mobility and fairness in thePromote social mobility and fairness in the
admissions process by addressing classadmissions process by addressing class
inequality.inequality.
 Avoid downside of using race, including lack ofAvoid downside of using race, including lack of
political support.political support.

12. Note: Figures refer to 1995 applicant pool. Adjusted admissions advantage for Bottom income quartile is calculated
relative to middle quartiles.
Source: William G. Bowen, Martin A. Kurzweil, and Eugene M. Tobin, Equity and Excellence in American Higher Education
(Charlottesville, VA: University of Virginia Press, 2005), 105, Table 5.1.
Adjusted Admissions Advantages at Elite
Colleges
27.7%
-1.0%
-5%
0%
5%
10%
15%
20%
25%
30%
Underrepresented
minority
Bottom income quartile
Percentagepointsofadvantage
Current Emphasis: Race Not ClassCurrent Emphasis: Race Not Class

13. Current Emphasis: Race Not ClassCurrent Emphasis: Race Not Class
Boost in the Admissions Process
at Highly Selective Private Institutions
130
310
70
0
50
100
150
200
250
300
350
African-American
applicants
Working-class
applicants
Poor applicants
SATpoints
Source: Thomas J. Espenshade and Alexandria Walton Radford, No Longer Separate, Not Yet Equal (Princeton, NJ:
Princeton University Press, 2009), 92, Table 3.5.

14. Economic Diversity at Selective InstitutionsEconomic Diversity at Selective Institutions
Source: Anthony P. Carnevale and Jeff Strohl, “How Increasing College Access Is Increasing Inequality,
and What to Do about It,” in Rewarding Strivers: Helping Low-Income Students Succeed in College,
ed. Richard D. Kahlenberg (New York: Century Foundation Press, 2010), 137, Figure 3.7.

15. Disadvantages Based on Class MoreDisadvantages Based on Class More
than Racethan Race
Cost of Disadvantage (in SAT points)
56
399
0
50
100
150
200
250
300
350
400
450
Low socioeconomic status Black
SATpoints
Source: Anthony P. Carnevale and Jeff Strohl, “How Increasing College Access Is Increasing Inequality, and What to Do
about It,” in Rewarding Strivers: Helping Low-Income Students Succeed in College, Richard D. Kahlenberg, ed., (New York:
Century Foundation Press, 2010), 170, Table 3.7.

16. TX Percent Plan: IncomeTX Percent Plan: Income
Source: William Powers Jr.., “The University of Texas at Austin: Report to the Governor, the Lieutenant Governor, and the
Speaker of the House of Representatives on the Implementation of SB 175,” December 31, 2011,
http://www.utexas.edu/student/admissions/research/SB_175_Report_for_2011.pdf, p. 29, Table 4.3.

17. Can Low-Income Students Do theCan Low-Income Students Do the
Work?Work?
Source: Anthony P. Carnevale and Stephen J. Rose, “Socioeconomic Status, Race/Ethnicity, and
Selective College Admissions,” in America’s Untapped Resource: Low-Income Students in Higher Education,
Richard D. Kahlenberg, ed. (New York: Century Foundation Press, 2004), 142, 149.
Effects of Race-based vs. Socioeconomic Preferences
10%
38%
90%
86%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Race-based, legacy, and
athletic preferences
Socioeconomic preferences
Percentage of
students in the
Bottom Two
Socioeconomic
Status Quartiles
Graduation Rates

18. Public Opinion:Public Opinion:
Affirmative Action by Race vs. ClassAffirmative Action by Race vs. Class
Support for Racial and Economic Affirmative Action:
3 polls
26 27 26
59 57
65
0
10
20
30
40
50
60
70
LA Times EPIC/MRA Newsweek
Race
Income
Source: EPIC/MRA poll (conducted January 29–February 3, 2003); Los Angeles Times poll (conducted January 30–
February 2, 2003); and Newsweek poll (conducted January 16–17, 2003).

19. #tcfevents