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Affirmative Action’s Uncertain Future

It was retired Supreme Court Justice Sandra Day O’Connor who first predicted the demise of affirmative action in 2003.

Writing for the majority in a 5-4 decision in Grutter v. Bollinger in which the nation’s highest court upheld a limited use of racial preferences by the University of Michigan Law School, O’Connor ruled that the school had a compelling interest in promoting class diversity.

But O’Connor went on to predict that race-based affirmative action would be obsolete within 25 years.

But policies that take into consideration race, gender, religion and other factors to benefit an underrepresented group that has historically been discriminated against has under increasing legal fire and disappear sooner than even O’Connor believed possible.

In October, the Supreme Court heard a case brought by a young woman named Abigail Fisher against the University of Texas at Austin. Fisher, who is white, was denied admission to the school in 2008 and argues that it was because of race.

If the court rules in her favor, it could prohibit all universities and colleges – both public and private – from considering race as a factor in admissions. Legal experts widely believe a narrow majority of the justices will side with Fisher.

On June 4, 1965, President Lyndon Johnson gave the commencement address at Howard University in Washington, D.C., setting down the intellectual argument in favor of a system that is now known as affirmative action.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair,” he said.

Julian Bond, the famed civil rights leader, was just 26 at the time. That speech made a profound impact on him and many other civil rights leaders. Bond argues that it began a process that was — and still is — necessary. “The forthcoming of affirmative action in its many forms and ways made it possible for these formally excluded groups to be included,” he told NPR. “So it’s been a great success.”

But over the past 20 years, in several states, affirmative action has been scaled back or even banned as a factor in university admissions. The most notable example was California, where voters approved a ban in 1996 on race as a factor in admissions.

“The effects were really devastating, and Berkeley clearly began to lose the critical mass of African-American and Latino and Native American students that the campus had achieved over a number of years,” says Bob Laird, who was the head of admissions at the University of California, Berkeley, from 1993 to 1999. “And the campus has never recovered.”

The assumption, says Laird, author of The Case for Affirmative Action in University Admissions, was that race was the sole factor Berkeley had considered prior to the ban.

Proponents of the legislation believed admissions offices would turn to other factors, such as socio-economic status, and new ways of recruiting students.

“The fact was that Berkeley had included low socio-economic status among its diversity variables for at least 30 years,” Laird says.

The university system had also been forming outreach and academic development programs since the mid-1960s, he says.

“The notion that somehow we could find something we hadn’t thought of was naïve, and in some cases, simply disingenuous,” he says.

An often-used critique of affirmative action is that implementing a quota system is unfair, but Laird criticizes that notion.

“We’ve gotten ourselves into this kind of absurd position where we say as a society, by and large, we really value the goal of racial and ethnic diversity,” he says. “However, we are not going to consider race and ethnicity in order to achieve this racial and ethnic diversity.”

The argument of unfairness also tends to accompany the idea of “reverse discrimination,” a term Laird calls a “very persuasive sound bite.”

“The notion that somehow dialing back slightly the needle on white privilege in higher education constitutes the same form of legal discrimination that took place for 300 years against African-Americans and, to a large extent, against Native Americans, and … in a more recent way, against Latino students, is really a false equivalency, and I think very careless thinking,” he says.

Americans are split when it comes to public opinion and affirmative action. Some argue that class — not race — should be the main factor in affirmative action.

Rick Kahlenberg, a senior fellow at the Century Foundation, is one of the leading proponents of this idea. He argues that if you look at the most selective colleges and universities in America, you’ll find that there are 25 times as many rich kids as there are poor ones.

He says you achieve ethnic diversity by only using class as an admissions factor by defining socio-economic status in a sophisticated way.

Universities nationwide may have to remodel their admissions policies, depending on the outcome of Fisher v. University of Texas.

And the entire nation awaits the outcome.

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