"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," wrote John Roberts, the chief justice of the Supreme Court, in a 2007 decision striking down school desegregation programs in Seattle and Kentucky. The simple eloquence of that phrase thrilled conservatives, who have long claimed that efforts to remedy racial discrimination amount to... racial discrimination.
Now Roberts and the court's conservative majority have another chance to crush government efforts to alleviate racial inequities. On Tuesday, the court decided to hear the case of Abigail Fisher, who claims the University of Texas' admissions policy discriminated against her as a white person.
"They probably will make a ruling that will further limit affirmative action," says Randall Kennedy, a professor at the Harvard University School of Law and a supporter of affirmative action. "Will it kill affirmative action? No." Even if Fisher prevails, he says, affirmative action in higher education may well continue—just via methods less explicitly reliant on race.
"Even right wingers get nervous with racial homogeneity," Kennedy argues. "Why do you think they loved Herman Cain so much? If Patrick Buchanan were elected president of the United States, there would have been a person of color in the cabinet."
Previous efforts to curtail what are known as "race-conscious" policies have shown that "universities don't just throw up their hands and give up on racial diversity," says Rick Kahlenberg, an education expert at the Century Foundation. "They look to race-neutral alternatives, some of which can produce substantial racial and ethnic diversity."
Kahlenberg points to Texas' "Top Ten Percent Law," which all but guarantees admission to the University of Texas–Austin (the network's flagship campus) for students in the top ten percent of their high school graduating class. Top Ten Percent was more successful in increasing diversity than the race-conscious policy it replaced, but it also made it harder for black and Latino kids in the second and third deciles of their high school classes to get in. Meanwhile, admission rates for white and Asian American kids with similar grades increased.
After the Supreme Court (with Justice Sandra Day O'Connor providing the swing vote) upheld affirmative action policies in 2003, UT Austin shifted to a system where Top Ten Percent students make up 75 percent of students, while the other 25 percent are admitted under a process that considers race, socio-economic status, and other factors. This approach has been slightly more successful in increasing minority enrollment, and it's the target of Fisher's lawsuit.
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