10/17/2012 06:48 pm ET Updated Dec 17, 2012

Affirmative Action Headed for the Dustbin of History

Poor Abigail Fisher. She had her cake and wanted to eat it too. The Supreme Court appears ready to hand her a fork.

Fisher is the plaintiff in the affirmative action case considered by the Court on Wednesday. The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all. She claims that this allegedly diminished pedigree has done her grievous harm. Whatever. Lots of kids don't get into the colleges they most desire. Did Fisher, or those who advised her to sue, choose to complain that some other white student of "lesser qualification" won the spot she so dearly coveted? No, it was only the allegedly "inferior" black applicants whom she apparently resents.

There is a great deal at stake in this case, perhaps more than most analysis suggests. The University of Texas has a modest approach to affirmative action, one clearly within the boundaries established by existing precedent -- the 2003 decision in Grutter v. Bollinger. That case, decided by a thin 5-4 margin, permitted the consideration of race among myriad other variables, as long as specific quotas were not in place. Because of the modesty of the Texas practices, one might legitimately question why the Court agreed to hear the case at all, unless of course the conservative majority was looking for an opportunity to shut the door on opportunity once and for all.

If Grutter v. Bollinger is overturned, which seems likely given the current composition of the Court and the tenor of the arguments on Wednesday, once again folks of color will be in a position of structural disadvantage in America. It won't be news to them, as institutional racism was never eradicated and is freshly pungent in the mythological post-racism era in America.

In many folks' minds, the question is whether there is, or ever was, an obligation to redress the legacy of segregation and racism by providing an affirmative opportunity to students of color in the admission process. The answer is unambiguously "yes," and the obligation persists despite several decades of slow progress (and a decade or two of backsliding). And there is the secondary, yet equally powerful, argument that a diverse educational environment is a better educational environment for everyone, regardless of race or ethnicity. One would hope these two arguments would be compelling enough to convince any reasonable person that modest efforts to achieve and maintain diversity, like those at the University of Texas, would be embraced on ethical, educational and constitutional grounds. But "reasonable person" may only describe a minority of current Justices.

But what most people don't recognize is that overturning Grutter v. Bollinger will usher in an era of affirmative disadvantage.

Conventional wisdom suggests that admissions criteria are clear and objective; that grade point average and SAT scores are, taken together, an accurate gauge of merit and potential. They aren't, and those who work with young women and men know it. First of all, there is abundant evidence that standardized tests and much curriculum, are riddled with cultural bias. Standardized test scores correlate precisely with wealth, not much else. And wealth is concentrated in white communities.

Second, and more important, these measures, even if they were valid, only capture a limited dimension of any person. Neither GPA nor SAT scores reflect imagination, creativity, compassion, originality, perception or capacity to recognize or create something of beauty. This is increasingly and sadly true in today's educational environment, where these qualities are neglected or repressed in service of mindless testing and competition. This is ironic in that the politicians, pundits and philanthropists who inform educational policy have driven these things out of the learning process while simultaneously arguing that they are the very qualities we need to be competitive in the global economy.

Schools need dreamers, procrastinators, eccentrics, artists, musicians and critical thinkers who, if they are indeed thinking critically, reject the "chase" for impeccable grades or the test prep that buys a few more SAT points. Any good school is properly wary about selecting only those students whose "metrics" sit at the top of the heap. They are often highly stressed, uninteresting and risk-averse. Those three qualities do not enliven a class, a campus or a society. An acquaintance of mine, who served a few years ago on the Board of Overseers for a very selective university, reported that their unpublished admissions policy was to admit a substantial portion of the entering freshman class from the pool of applicants whose SAT scores were conspicuously lower than the median. The motivation was to make them look harder for all the other qualities that would enhance the college community, in and out of the classroom.

The likely Court ruling may be constitutionally defensible, but it is socially indefensible. It's infuriating that the Court will likely rule that race can't be considered in admissions. Those who argue that we are in a post-racist era claim to be color blind. Try telling that to any person of color. Race is negatively weighted in nearly every other experience for folks of color, from profiling on the highways, to stop-and-frisk practices in New York City, to inequity in employment opportunity. But we can't consider it when it might be properly seen as a desirable asset that a student brings to a school or college. In a post-Grutter v. Bollinger world the most vibrant educational environments will continue to be crafted to include dreamers, eccentrics, artists and iconoclasts, but the only quality that will be excluded for consideration will be race. It is certain that this exclusion will lead to less diverse student bodies, less interesting campuses and less opportunity for students of color.

Ironically, one positive side effect of the probable Court decision is that students of color will not be subjected to direct accusations of having been admitted solely because of their race. But that small mitigating factor won't entirely remove the unfounded stigma that already affects people of color, whether in college admission or employment.

With or without direct consideration of race in the admissions process, any student of color who isn't in the top tier of grades and test scores will be viewed with skepticism. I've seen it over and over again. At Calhoun, the school I lead, I've watched students of color break down in tears because a few classmates smugly assumed that their acceptance at an Ivy League college was related to their race.

Kids of color already know this. Their parents tell them that they simply have to be better and work harder than their peers. A brilliant black poet with mediocre test scores will always be suspect. A white artist will never be challenged for having been admitted on the basis of her race, regardless of her SAT scores. Either way this ruling goes, black students will have to prove their merit in ways that white students don't.

Prohibiting consideration of race in admissions will ensure that young women and men of color continue to operate in a society that places them in a position of affirmative disadvantage. It will feel quite familiar.

(This piece appeared first in the Valley News)