Affirmative action, on many bases
Most prominent liberals, including civil rights leaders and the Obama administration's lawyers, have indeed urged the court to uphold the current version of affirmative action. Yet a rump group of left-leaning legal scholars and education experts share at least some of Justice Kennedy's concerns. And they find themselves in the unusual position of seeing upsides in another potential liberal defeat in Chief Justice John G. Roberts Jr.'s court.
When elite colleges describe their admissions process, it sounds like one that follows Justice Kennedy's standard, with race as just one factor. In an amicus brief supporting the University of Texas, the eight Ivy League universities and six others said they sought a student body that was "diverse in many ways."
In fact, race plays a role unlike almost any other factor. An African-American student with a similar application to a white student received the equivalent of a 310-point lift in SAT scores, on a 1,600-point scale, according to a study of elite colleges by Thomas J. Espenshade, a Princeton sociologist. For Latino students, the margin was 130 points.
Recruited athletes and so-called legacy applicants also receive huge bonuses. But students who bring the other diversity that colleges claim to value -- socioeconomic status, geography and perspective, to name three cited in the brief -- receive no such advantage.
One study of 1990s data found that, all else equal, poorer students received no lift relative to affluent ones. Mr. Espenshade found that low-income minorities were somewhat more likely to gain admission than similar higher-income minorities but that lower-income whites received no advantage. In effect, poor and middle-income students are rejected, while others with the same scores and grades -- legacies, athletes and minorities, often from privileged backgrounds -- are admitted.
As a result, elite public and private colleges remain dominated by affluent students. Some colleges probably have more students from the top 2 percent of the income distribution than the bottom 50 percent.
The Kennedy dissent leaves the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk -- and help many minority applicants.
The most obvious is income. But others may be more important. If colleges gave students credit for coming from a low-income ZIP code, black and Latino students would benefit enormously, as they would from the consideration of wealth and family status. Only 27 percent of white students grow up in a single-parent family, compared with 60 percent of black children and 34 percent of Latino children.
One possible outcome is that the court will force colleges to show they have tried these forms of affirmative action before they turn to race. Another is a decision holding that racial preferences can be no larger -- in terms of SAT points, for instance -- than class preferences, says Stuart Taylor Jr., a co-author of a book critical of affirmative action.