They’ve done it again. The Supreme Court has upended decades of precedent, this time with affirmative action.
In a 6-3 ruling divided along ideological lines, the court decided that any use of race as a factor in college admissions, at either a public or private university, violates the Constitution. The case was brought by Students for Fair Admissions, a conservative activist group, against Harvard and the University of North Carolina, two of the nation’s oldest higher education institutions.
The activists’ core argument was that the colleges’ admission programs discriminated against white and Asian American applicants and employed subjective standards to limit the number of Asian students accepted.
Writing for the majority, Chief Justice John Roberts based the opinion on a new interpretation of the Equal Protection Clause in the 14th Amendment — the one that extends equality under the law to Black Americans.
Roberts walked a tightrope in acknowledging that previous rulings reinforced that race could be used as a factor in evaluating applicants. He argued that in 2016 the court upheld the University of Texas’ admissions program because the goal was to enroll a “critical mass” of certain minority students. Harvard and North Carolina’s programs were more directly race-conscious.
Roberts added that in previous rulings, the court never intended for race-based admissions programs to exist in perpetuity. “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end,” he wrote. “Respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria.”
We disagree that the Equal Protection Clause was meant to block race-based decisions. Quite the opposite. After the Civil War, to help freed slaves, Congress enacted lots of race-conscious laws.
That said, Texas has already been down this road, and our state offers lessons for the rest of the country. In 1996, a lower court banned race-conscious admissions at Texas’ public universities. After the Supreme Court overturned that ruling, only UT-Austin went back to affirmative action, and then only for a quarter of its class.
We learned that diversity at selective schools is possible without affirmative action, but it’s expensive and not easy. Race-neutral programs can actively recruit students from schools that don’t often send kids to college, coach the students through the application process, offer scholarships, provide support from peers and connect them to mentors. Call it diversity as a byproduct.
Texas’ well-known 10 percent rule didn’t yield the results its proponents hoped, but other approaches proved themselves.
UT and A&M’s recruitment and scholarship programs “were very effective at encouraging applications from diverse groups of students,” said Daniel Klasik, a professor at the University of North Carolina who studies pathways to college, drawing from his research with Kalena Cortes, a professor at A&M. But those programs are “expensive and hard to implement on a broad scale.” A brochure with a photo of diverse-looking students doesn’t cut it.
Consider the kind of work that goes into intense recruitment. Christine Stanley, the former vice president for diversity at A&M, told the publication “ Diverse ” that she met ministers of Black churches in Dallas for lunch and, as a result, “had several of those ministers to help us recruit and organize tours to campus.”
Is it still legal to send a recruiter to a Black church? It appears so: In her dissent, Justice Sonia Sotomayor wrote that the decision leaves “holistic” recruitment efforts intact.
Similarly, we believe that Texas’ new law banning diversity, equity and inclusion offices is no impediment. It includes an exception for “student recruitment or admission.”
So we hope that Texas universities continue their fight for diverse student bodies, and that our high schools send more Black and Latino students, not fewer, to college. Our state needs diversity of all kinds — diversity of race, ethnicity, class, sexual orientation, geography and political viewpoints. Diversity isn’t just about righting the wrongs of history. We need diversity because it leads to better education and more rigorous, creative thought. We need it for the economic health of our state.
Clearly, Texas universities and philanthropies must study the court ruling and state law with care. And then, we hope, they’ll pump funds and staff time into whatever is effective and legal. We take it as a good sign that the president and provost of Rice University, Texas’ top-ranked private school, have already pledged “to do everything we can — and everything we must — to maintain and expand the excellent diversity and vibrancy of the Rice community.”
Maintaining diversity on our nation’s campuses (never mind expanding it) will be a tall order. The end of affirmative action may signal to students from underrepresented groups that they aren’t welcome. It’s important to remember, though, that this ruling doesn’t reinstate some kind of bygone racist doctrine. Laws are still in place to protect students from discrimination.
It will take an army of recruiters and counselors shaking hands with students and their families to build their trust. It will take quiet conversations, explaining when to fill out application forms, what types of financial aid are available, when to register for classes, what majors are out there, and how to ask for help from professors and teaching assistants during office hours. Is it cold at that Panhandle school? Here’s a coat.
It’s time for Texas colleges and universities to show up, not retreat. Let’s get busy.
Houston Chronicle
