Report Could Doom Affirmative Action in Higher Education

WASHINGTON - Aug. 17, 2015 - PRLog -- WASHINGTON, D.C.  (August 17, 2015) -  A report from the American Council on Education [ACE] could doom affirmative action, at least regarding racial preferences in college admissions, when the U.S. Supreme Court takes up that issue, at the University of Texas [UT], for the second time this fall.

        The report's finding that the mandate the high court issued in the first UT proceeding - that colleges should use race only as a last resort in making admissions decisions - has been almost universally ignored, may well anger and embolden some justices, including swing voter Anthony Kennedy, into adopting even tougher and more far reaching restrictions on the use of race, if it is to be permitted in the future at all, says public interest law professor John Banzhaf.

        Also, the report seriously undercuts arguments accepted by some justices in the past that racial preferences in admissions were necessary to achieve effective diversity in the classroom, says Banzhaf.

        ACE shows that many colleges which never used racial preferences were nevertheless able to achieve diversity even without this tactic, and that in states where preferences were banned, the colleges were able to utilize other proven techniques to bring in a sufficient number of minority students
.
        If racial preferences aren't necessary to achieve classroom diversity, which the Supreme Court has said is the only justification for such racial discrimination, then the Court could outlaw the use of race in considering applicants without adversely affecting the only legally proper goal, says Banzhaf.

        When the High Court first considered racial preferences at UT, it ruled 7-1 that colleges could still consider race, but placed upon them "the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

        As the Chronicle of Higher Education reported: "The Fisher case was meant to send a strong signal to colleges: It was time to change the way of doing business."

        But the ACE report showed that colleges virtually ignored the mandate, and largely continued doing business - discriminating on the basis of race - as usual.

        More precisely, it reported that: "when asked directly whether the Fisher ruling affected their admissions or enrollment management practices, only 13 percent of institutions responded in the affirmative."  As the Chronicle put it, "In short, colleges didn’t take the ruling very seriously."

        Thus, this fundamental constitutional ruling was seemingly ignored at the overwhelming majority of institutions of higher education.  Even at the 13 percent where it allegedly had some impact, that impact could well have ranged from sincere to no more than lip service, suggests Banzhaf.

        Perhaps even more telling in the long run - especially for swing voter Justice Kennedy who dislikes using racial preferences to achieve diversity - is that, when racial preferences were banned by law in several states, colleges were still able to achieve the desired diversity without racial discrimination by tactics such as increasing consideration of overcoming adversity, putting more emphasis on socioeconomic disadvantage, and eliminating legacy preferences.

      If diversity can be achieved without discriminating against White and Asian students solely on the basis of their race, the Court may well finally end racial preferences.  As Chief Justice Roberts once put it, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf