April 1, 2012
To Enroll More Minority Students, Colleges Work Around the CourtsBy
RICHARD PÉREZ-PEÑAWith its decision to take up racial preferences in admissions at public colleges, the
Supreme Court has touched off a national guessing game about how far it might move against affirmative action and how profoundly colleges might change as a result.
But no matter how the court acts, recent history shows that when courts or new laws restrict affirmative action, colleges try to find other ways to increase minority admissions.
The aggressiveness of those efforts, and the results, vary widely by state, but generally they increase minority enrollment — though not as much as overt affirmative action once did. And they have tended to help Hispanic applicants far more than blacks, at least partly because of the demographics of the states where they have been tried.
Texas and a few others, for instance, compare students with their high school classmates, rather than with all applicants, resulting in more enrollment from poor communities. Washington is among the states that give added credit in the admissions process to students who come from poor families or excel at troubled schools.
Other colleges have spent more time recruiting in underrepresented communities. And the University of California system tries to weigh a student’s life beyond grades and test scores — which, critics say, sometimes amounts to giving racial preferences without acknowledging them.
Even if the Supreme Court limits the options, college and universities will “be seeking diversity by any legal means possible,” said Ada Meloy, general counsel of the
American Council on Education. But a decision overturning affirmative action could produce a national pattern of more liberal states going further to mimic the current system than more conservative states. Defenders of affirmative action are most likely to see any new system as unfair to black and Hispanic students, while critics will still see it as unfair to whites and Asian-Americans.
The current nationwide standard is based on two decisions
involving the University of Michigan in 2003, when the Supreme Court ruled that public universities could not give an applicant an automatic advantage based on race or ethnicity. But in a decision written by Justice Sandra Day O’Connor, the court also ruled, 5 to 4, that colleges could consider race and ethnicity as part of a case-by-case assessment of individuals.
Since 2003, the court has shifted rightward, with Justice Samuel A. Alito Jr., a critic of preferences, replacing Justice O’Connor. In February, the court
agreed to hear Fisher v. University of Texas, a challenge to the university’s admissions policy, fueling speculation that it could revisit the standards it set nine years ago. The Texas system admits the top students at every high school in the state, but also admits additional students with a system that takes race into account.
The court has many options, including leaving things as they stand, finding that universities are interpreting the Michigan case too loosely, altering it, or overturning it completely. And it remains unclear how any ruling would affect private colleges, which rely heavily on federal financing.
Perhaps the best glimpse of a future without the current version of affirmative action comes from the handful of states that have already outlawed the use of race in public college admissions.
After California voters approved such a law, black and Hispanic freshman enrollment at the University of California system dropped by about one-quarter in 1998, the first year the ban was in effect. At the system’s most competitive campuses, in Berkeley and Los Angeles, enrollment for those groups fell by almost half. In the years since, the system has tried several approaches to increase diversity without directly taking race into account, and the numbers eventually rose.
Black students accounted for just over 4 percent of University of California freshmen in the mid-1990s. That fell to 3 percent after the law took effect, and remained there for several years, before climbing close to 4 percent in recent years.
Hispanic enrollment stood at 14 to 15 percent of the total before the ban, and fell to 12 percent in 1998, but quickly began to climb, driven by California’s fast-rising Latino population. By 2010, that group accounted for more than 22 percent of the system’s freshmen.
“If we had affirmative action as one of our tools, we’d do somewhat better for Hispanics, and we’d probably do significantly better for African-Americans,” said
Mark G. Yudof, president of the University of California system.
A central part of California’s effort has been to compare applicants with other students in their communities, rather than with students statewide, much as Texas does. At each high school, the top 9 percent of students are guaranteed admission to the University of California — though not necessarily to the campuses of their choice — as long as they meet some other criteria. Officials acknowledge that the aim is race-conscious but that the mechanism is race-neutral.
Florida uses a percentage-based system as well. There, as in California and Texas, the benefits go mostly to Hispanic students because of the large number of high schools that are predominantly Hispanic. Black students are spread among high schools with large numbers of other students.
In California, arguably the most liberal state to have banned affirmative action in admissions, the university system has gone further to increase minority enrollment. The system has expanded, adding a new campus and increasing enrollment at existing schools.
The Berkeley campus, and later U.C.L.A., also adopted an admissions approach called holistic review, reducing the emphasis on grades and test scores while taking a broader look at students’ experiences and the challenges they have overcome. “I do think you’re going to see a move toward a more holistic admissions system” in other states, Mr. Yudof said, especially if the Supreme Court rolls back consideration of race. His system is pushing all of its campuses in that direction.
Some of the public universities in Washington State, where voters banned affirmative action in 1998, use a holistic approach, as does the University of Michigan.
Richard H. Sander, a U.C.L.A. law school professor who studies the issue, says that the holistic approach is also loose enough to allow race to be an unacknowledged part of the equation, potentially violating state law. University officials insist that their systems are race-blind.
In Washington, Hispanic and black enrollment at state universities did not change much after the law went into effect, but at the state’s flagship, the University of Washington, it fell for a few years, before returning to its former level. At the University of Michigan, minority enrollment fell sharply after the law took effect in 2007, and has not rebounded. Black students made up more than 10 percent of the freshman class a decade ago, and 7 to 8 percent in the years just before the law, but that has dropped to a little over 5 percent in recent years.
As for the Fisher case, Professor Sander pointed to the crucial role of Justice Anthony M. Kennedy, widely seen as the swing vote. He predicted that rather than overturn the standards it set in 2003, the court would amend them or alter the way they are carried out, restricting the use of race without eliminating it. “This hinges on Kennedy,” Professor Sander said, “and Kennedy usually likes to do half a loaf.”
