The Many Faces of Affirmative Action

10/17/2012 10:36 am ET | Updated Dec 17, 2012

The Supreme Court heard oral arguments last week in the case of Fisher v. Texas, which deals with the University of Texas' undergraduate admissions policy. The policy, which some call "the Texas affirmative action plan," is designed to promote diversity in the student body. However, it is not the only "affirmative action plan" being used by UT.

Texas actually has several affirmative action plans, but we don't always recognize them as such. First, there is the "Top Ten Percent Plan." This plan is based on a state law that automatically admits any Texas student that graduates from the top 10 percent of their high school class to the flagship university in Texas. This plan allows students who may have lower SAT scores, scores that are generally weighted heavily in college admission, to get a leg up because of the school they attend.

This plan accomplishes the task of diversifying the University of Texas' undergraduate student body because of a disturbing reality: High schools in Texas, and throughout the entire country, are deeply and persistently segregated by race, ethnicity and class. This demographic fact assures, under the Top Ten Percent Plan, that some black, Latino and poor white students will gain admission to UT that otherwise would not. Consequently, under the plan, they are better off and improved life chances than if the Percent Plan was not in place. In a sense, the Top Ten Percent Plan is a geographic affirmative action plan.

A second form of affirmative action is more common across the United States: the practice of allocating scarce seats to elite colleges and universities based largely on high-stakes testing, most commonly the SAT. Now some, including the makers of the test, the College Board, have argued that tests like the SAT are being over-relied-upon by admissions committees and misused.

Others go even further and say that the practice of weighting high SAT scores in the admission process is an affirmative action plan for upper-middle-class, largely white students who disproportionately enjoy access to test preparation and support, and have already benefited from attending elite and high quality K-12 schools, schools that are out of the reach of most low-income whites, and most black and Latino students, due to the neighborhoods in which they reside. By relying so heavily on SAT scores in college admission, some say that we are not measuring a student's ability to succeed in college or contribute to society, but rather the ability to perform well on a standardized test. Additionally, many social scientists say that these kinds of standardized tests are standardized with a certain population in mind. This "standardizing" process, called "normalizing," is most often normalized using white, middle-class students as the norm.

Neither of these affirmative action plans were before the Supreme Court for consideration in the Fisher v. Texas case. Instead, the Court expressed concern that the University of Texas has adopted a plan that allows the University of Texas to consider race among other factors in the admission process because the Top Ten Percent Plan does not, in fact, produce enough student to constitute what is called a "critical mass." This can be confusing, especially for non-lawyers.

What is critical mass? Here, it refers to the diverse proportion of a student body, supported by some empirical evidence, which is necessary to realize the benefits of diversity within the educational environment. Critical mass proponents posit that when there are very small numbers of underrepresented students within a particular student body, these students are more likely to experience themselves as tokens -- and to be perceived as such -- which ultimately limits not only their ability to succeed, but also to comfortably express their personal viewpoints in a vigorous exchange.

In Grutter v. Bollinger (2003), the Supreme Court endorsed the principle that universities could create admissions policies that consider race along with other factors to increase the number of underrepresented student to achieve a critical mass. In Grutter, the Court relied on the assertion by social scientists, corporations, and the military of the importance of having a diverse student body at elite institutions of higher education. Now, what the Court seems to be concerned about, among other things, is the number of students needed from the targeted groups to reach a critical mass, and how long the university will we need to use race as a factor in admissions to achieve that. In the context of the Supreme Court argument, these are trick questions. Chief Justice Roberts especially pressed these questions.

But why are they trick questions? Why can't we just give a number?

First of all, if the lawyers supporting this form of affirmative action give a number, they will lose because the Court, and especially Chief Justice Roberts and the other conservatives, have expressed strong hostility to having a set number, which they deem either racial balancing or quotas. They have argued that race quotas are unconstitutional. However, if we know what is needed, contextually, to create a critical mass and that having a critical mass is an improvement to the educational environment, why can't we use numbers? The answer to this question is probably reachable, but it is still a difficult question.

Consider this question: How many cigarettes does one have to smoke to get cancer? Or how much radiation exposure must one endure before developing cancer? We would probably be hard-pressed to answer these questions with a single number. Yet, we know a lot about the relationship between smoking cigarettes and getting cancer, and we turn to science and the medical profession to help. Could we do something similar with the Texas case by turning to social scientists and educational professionals, including Universities, themselves for help? The answer is yes, but the conservatives on the Court seem less interested in this approach or any approach that would support UT's policy.

Could we also consider answering the question, how long it would take to reach critical mass by using the methods now in place in Texas, or elsewhere in the United States? Is there a time when we will not need to use race considerations to achieve critical mass or a diverse student body in higher education? There is a long answer to this question, and a short one. I will give you the short one.

As long as we use race to sort students in K-12 schools, as explained above -- by relying on neighborhoods to assign student to particular schools -- we will need a remedy in higher education to overcome this obstacle to opportunity. Unfortunately, in relation to the question above -- whether we can say what the numbers we need to be reached to achieve critical mass -- and this last question -- whether we can figure out how long it would take to reach critical mass using affirmative action methods -- the conservatives on the Court seem uninterested in meaningfully answering them except in so far as the question may be used to attack UT's limited use of race.

If we are to have a society that draws upon all of its talents and does not consign people to inferior opportunities in life based on where they live or how much money they have, we will need carefully designed affirmative action interventions.