In The Arena Did the Supreme Court Just Kill Affirmative Action? No. But it’s clearly on its deathbed. That might not be such a bad thing.

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action.

Tuesday’s decision by the U.S. Supreme Court upholding the right of voters to ban racial preferences in college admissions drives another nail in the coffin of affirmative action policies. But it’s not necessarily the disaster for diversity on campus that critics of the decision would have you believe.

In Schuette v. Coalition to Defend Affirmative Action the majority ruled, by a 6-2 margin, that voters can amend a state constitution to ban race-based affirmative action by referendum, as Michigan voters did in 2006 by a large margin, 58 percent to 42 percent. The decision comes on top of last year’s ruling in Fisher v. University of Texas that universities have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable, race-neutral alternatives do not suffice,” as Justice Anthony Kennedy wrote for the majority. In neither case did the Supreme Court object to the goal of promoting racial diversity in college admissions, but the justices are seeking to steer universities away from policies that count skin color in deciding who gets in toward alternatives – such as giving a leg up to economically disadvantaged students of all races.


The Schuette decision, technically speaking, did not go to the merits of whether affirmative action policies are constitutional and instead raised a question about whether the political process by which voters banned racial preferences was fair. Nevertheless, in their opinions in the case, the justices couldn’t help expressing their views on affirmative action policies, giving more indication of where the court is headed on this issue.

Justice Kennedy’s opinion, joined by Chief Justice John Roberts and Justice Samuel Alito, remarked that Michigan voters, in banning a racial preference, might have believed that such policies have the “potential to become … a source of the very resentments and hostilities based on race that the Nation seeks to put behind it.” By contrast, Justices Sonya Sotomayor and Ruth Bader Ginsburg provided a full-throated defense of racial preferences policies, arguing that to address racism, we have to take account of race.

Kennedy, as the court’s swing vote, was once again the one to watch. In Fisher, he placed new emphasis on the need for universities to come up with alternative strategies to pursue diversity short of racial preferences. And in Schuette, he returned to that theme. One reason to allow voters to ban racial preferences is that in the U.S. federal system, states that eliminate preferences have “engaged in experimenting with a wide variety of alternative approaches,” he wrote, lauding the idea that “the states may perform their role as laboratories for experimentation to devise various solutions.”

That experimentation has spawned a variety of new approaches that can indirectly promote racial and ethnic diversity without resorting to racial preferences. In 2012, my colleague Halley Potter and I examined a number of states that had outlawed considering race in admissions, often by voter referendum. In addition to Michigan, these states include Arizona, California, Florida, Nebraska, Washington and others.

Six states, we found, have spent money to create new partnerships with disadvantaged schools to improve the pipeline of low-income and minority students. Eight states have provided new admissions preferences to low-income and working-class students of all races. Eight states have expanded financial-aid budgets to support the needs of economically disadvantaged students. In three states, individual universities have dropped legacy preferences for the generally privileged—and disproportionately white—children of alumni. In three states, colleges created policies to admit students who graduated at the top of their high-school classes. And in two states, stronger programs have been created to facilitate transfer from community colleges to four-year institutions.

How well have these programs done in promoting racial and ethnic diversity? In examining 10 leading public universities, we found that seven were able to maintain, or exceed, the proportion of African American and Latino students they had achieved through racial preferences in the past. So it can be done.

In her dissent, Justice Sotomayor highlighted the three exceptions to the rule – the University of California at Berkeley, UCLA, and the University of Michigan – none of which have been able to preserve full diversity using alternatives. What she does not say is that these three draw on a national pool of applicants and therefore have to compete for the most talented minority students with top-tier national universities, such as Stanford and Harvard, that can continue to use race in admissions.

The other important implication of Schuette is the issue of who can decide the fate of affirmative action, and the way the justices lined up exposed another long-run vulnerability of racial preference policies. The dissenters, Justices Sotomayor and Ginsburg, said the decision should lie with university boards, while the majority thought the voters could decide. And who decides makes an enormous difference: University boards support racial preferences in part because alternate ways to create a diverse student body—such as admitting more economically needy students—are more expensive. It is cheaper to recruit wealthy students of all colors, who likely won’t need financial aid.

Today’s disadvantages, though, are more closely associated with class than race. When measured by income, the academic achievement gap is now twice as large as the race gap. More broadly, socioeconomically disadvantaged students score, on average, 399 points lower on the SAT than wealthy students, while the difference between African-American students and white students of the same socioeconomic class is just 56 points. Affirmative action policies should be updated to reflect these new realities.

But voters don’t like the idea of counting race in college admissions, and in almost every case the question has gone to the polls, anti-affirmative action referenda have passed. What the voters do support – by a two-to-one margin, according to several polls, is rewarding strivers – low-income students of all races who have overcome odds. With the Schuette decision, we’ll see if they get their wish .