Why 'Fisher' Means More Work for Colleges

Originally Published in The Chronical of Higher Education July 29, 2013

In Fisher v. University of Texas, the U.S. Supreme Court affirmed a decades-old principle that colleges and universities may use race-conscious affirmative-action plans in order to enroll a diverse student body. To consider race in admissions, however, institutions must prove to courts that race-neutral alternatives—such as relying on socioeconomic status or where students live—will not work. In the court's words, colleges must prove that "no workable race-neutral alternatives would produce the educational benefits of diversity."

Most commentators greeted Fisher with a yawn, or a sigh of relief or disappointment, concluding that the court had changed very little.

Lower courts and colleges may ultimately beg to differ, as the court's emphasis on the exploration of race-neutral alternatives represents a subtle but potentially significant shift. No longer may lower courts simply defer to the good-faith decisions of colleges regarding the necessity of explicitly considering race in admissions decisions rather than some proxy for race. Colleges must instead attempt to prove, and lower courts must determine, what counts as a "workable" race-neutral alternative. This is much harder than it might seem. It also raises questions that go to the heart of a college's mission and stretch the institutional competence of courts.

To determine whether a race-neutral alternative is "workable," one obviously has to know the ultimate goal of the affirmative-action plan—and know how much racial diversity is "enough." The larger the group of minority students sought, for example, the less workable race-neutral alternatives are likely to be. Yet the court gave no hint in Fisher as to how to decide if an alternative that produced, for example, 60 percent as many minority students would be sufficient. In the past, the court has suggested that colleges can strive to enroll a "critical mass" of minority students, but that is hardly a precise concept. And the court has further muddied the waters by warning repeatedly that colleges cannot attempt to enroll a specific number of minority students, as that would constitute a quota, which the court has forbidden.

Assuming that first question is answered and a diversity goal is established, the next task is to determine whether a race-neutral alternative is workable. But workable in what sense? Colleges that adopt race-conscious affirmative-action plans are trying to balance racial diversity and academic selectivity. It is easy to imagine all sorts of race-neutral plans that increase diversity but do so only at the expense of academic selectivity. A lottery for admission to a state university, for example, would be great for diversity but would destroy academic selectivity. In the past, the court has held that colleges need not choose between racial diversity and competitive admissions policies, but that, too, offers only vague guidance.

The unavoidable reality is that, if racial diversity is a goal, no race-neutral proxy will work as well as race in producing it, and all proxies will impose costs. For instance, racial minorities are by definition a minority of all young people and, regrettably, a very small minority of the most academically prepared applicants. Even though African-American and Latino students are more likely to be poor than others, they are a small share of the poor and an even smaller share of the poor and high-scoring youth. If family income is used as a proxy for race, therefore, colleges will have to accept and enroll many more low-income students in order to yield the same number of minority students. If class size is held constant, a college could not avoid reducing the proportion of students selected based on academic preparedness and other reasons.

The same is true with respect to other proxies for race, such as place of residence, parental-education level, or being the first in the family to go to college. The court sometimes seems to labor under the belief that there is some magical combination of race-neutral proxies that will produce exactly the same group of students as in a class admitted under a race-conscious plan. Admissions officers know differently, and they understand that any alternative requires trade-offs among different student characteristics and therefore will produce a different student body.

So which trade-offs are worth the price? That is a difficult question to answer, and one that is particularly difficult for courts because it is fundamentally an education question, not a legal one.

It is nonetheless possible to see a silver lining in the Fisher decision. Colleges must now educate courts regarding the choices they have made in their admissions policies. To do so, they will have to be clear-eyed in assessing those choices and must be prepared to articulate the rationale for making them. What is the overall goal of their admissions policy? How much diversity, roughly speaking, are colleges seeking to achieve and along what dimensions? Why? Perhaps all colleges have already answered these questions, but we suspect some have not, and to the extent the Fisher decision prompts this sort of internal review, that is all to the good.

Beyond clarifying goals, colleges should also be prepared to defend their consideration of race, which means explaining why race-neutral alternatives are not sufficient. This will entail justifying, in educational terms, the diversity goals that have been established. Defending affirmative action will also entail explaining to courts the costs of race-neutral alternatives. To quantify such costs, colleges could review their admissions folders (or at least a representative sample of them) and have admissions officers flag the family-background factors that are potential race-neutral alternatives. Analysts could then estimate how much those factors would have to be weighted (and other factors diminished) in order to produce the outcomes now produced with race-conscious admissions. They could then compare the results of race-conscious and race-neutral policies on individual dimensions—like test scores or high-school grades—or on combinations of traits such as academic indices. This would at least make clear that race-neutral alternatives come at a price.

In addition, it may be useful for colleges to demonstrate their seriousness of purpose in minimizing the need to consider race. Many disadvantaged students, even those who have the academic preparation to succeed at selective colleges and universities, still do not apply to the institutions where they might be admitted. Institutions should join the College Board and other organizations trying to change this.

In the wake of the Fisher decision, few universities and colleges are prepared to answer the questions that courts will soon be asking. If they fail to prepare convincing answers, they will lose. And, having been put on notice, responsibility for that loss will be with our college and university leaders, not our courts.