02/20/2013 01:09 pm ET Updated Apr 22, 2013

Affirmative Action -- an Optical Illusion?

Since I write about college rejection, I thought I should offer some advice for Abigail Fisher, the girl at the center of the latest affirmative action case to reach the Supreme Court, Fisher v. University of Texas at Austin.

Fisher challenged the constitutionality of the use of race as a factor in the University of Texas admissions process. The Texas state university system is one of the few that offers automatic admission to students ranked in the top 10% of their graduating class. This is clearly a race-neutral policy, and if Abigail Fisher had been in the top 10% of her class, we wouldn't be talking about her. But she was in the top 12%, so her application ended up in the non-10% pool, which takes a "holistic" view of students. Texas admissions officers are permitted to consider various factors in evaluating the non-10% applicants, such as speaking a second language, being raised by a single parent, and race (which was added later when the other factors did not yield the desired level of diversity). Fisher, who is white, was rejected from UT Austin, and sued.

So what would I tell Miss Fisher? She seems very determined, and quite honestly that is more important than any degree. It is hard to find her wronged when there are so many fine universities to choose from, even if she had her heart set on UT Austin (she ended up at Louisiana State University). I have come to regard affirmative action as another factor in the fickle admissions process, one more reason students should not be too vested in an end result that is really beyond their control.

Yet as I read more about her case, I began to think colleges can do better. It is possible that affirmative action is out of date, not because discrimination doesn't exist (it surely does), but because what it means to be African-American or Hispanic or any other race these days is not limited to a single life experience. Racial identity is not as neat and simple as the box students are asked to check on their applications. To treat it as such reduces our individuality to a mere stereotype.

I don't think anyone doubts that all forms of diversity enhance the learning experience. We don't just learn from books and professors in college - we learn from our fellow students, too. The Supreme Court agrees, and the case law is settled on the point that educational diversity is a "compelling interest." But while it is easy to agree on the importance of diversity, we don't quite know how to get there, or when we have arrived. We can't even define what diversity is - colleges talk about a "critical mass" of students necessary to achieve diversity, which clearly frustrated the Justices during oral argument in the Fisher case.

What causes the uproar is that in coming up with this "critical mass," colleges too often sacrifice their objective admission requirements to their subjective ones. After over thirty years of trying, it appears that preferences are still necessary to achieve racial diversity. In the Fisher case, there were vast differences in the test scores and GPAs of white, Asian-American and African-American students accepted under the non-10% plan (Asian-American SAT scores were over 450 points higher than African-American scores, and white SAT scores were over 350 points higher). When California adopted a race-neutral admissions system, the number of admitted African-Americans and Hispanics at the most selective schools dropped.

Some would say this means affirmative action has failed. I disagree. Affirmative action has done a lot of good, and for that I am thankful. However, we could have done so much more if we had addressed the real problem. The lingering gap in test scores and GPAs is due to the dismal state of K-12 education in many parts of the country. This is what Condoleezza Rice has called "the civil rights issue of our time."

When viewed in this light, affirmative action creates an optical illusion. Yes, there are many success stories (including two justices sitting on the Supreme Court, although only one of them supports affirmative action). However, for every success story there are countless invisible students with potential, but beyond the reach of admissions officers. Based on recruiting efforts and Pell Grant statistics, many of the students constituting the "critical mass" are affluent and had no shortage of educational opportunities. Should the experience of an affluent African-American student carry more weight than that of a poor, first-generation Vietnamese student? Any policy that raises such questions has taken us off course.

Affirmative action is quick and easy; real change is hard, but lasts. Many have taken on this hard work. After California banned race-based admission policies in the UC system, UC Berkeley and others began investing in the public schools. Non-profits like First Book and The Bill and Melinda Gates Foundation are bringing fresh ideas and creative solutions to the table. And let's not forget those who work in the schools where there are no meet and greets with Ivy League admissions officers. One guidance counselor at an urban, public, science and engineering magnet school lamented to me that they have the talent, but just can't get the attention of top schools.

In 2003, the Supreme Court upheld affirmative action, but predicted that racial preferences "will no longer be necessary" in twenty-five years. I wish they had used "should" instead of "will." Unlike the definitive yet hollow "will," the term "should" implies action, and shame if unheeded. Action is what we need to broaden the applicant pool without preferences. Otherwise, the twenty-five year goalpost will forever remain out of reach.