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Eight years after surviving its last fight, affirmative action is set to face its next Supreme Court battle on Wednesday. Despite half a century of precedent, the oral arguments could mark the beginning of the end for race-based admissions decisions at institutions of higher education – including New York’s.

The case, Fisher v. Texas, was filed four years ago by a white teen, Abigail Fisher, after the University of Texas rejected her application.

Like 42 other states, New York permits race-conscious applicant selections. If a majority of the nine justices chooses to declare such policies unconstitutional, it would force every state university system to stop. Private colleges would be barred too.

“If there wasn’t going to be a consequence to this, or a result that has an impact, I don’t think we’d be seeing the efforts and we wouldn’t be seeing this concern,” said Theodore Shaw, professor of professional practice at Columbia Law School and former director-counsel and president of the NAACP Legal Defense Fund.

New York State’s attorney general, Eric Schneiderman, has come out in support of defendant University of Texas, joining with 14 other states’ attorneys general in filing a brief in its support, arguing that racial diversity in higher education benefits everyone. “To protect the academic freedom of public institutions of higher learning and to allow them to achieve the full educational benefits of diversity, the Court should stand its ground against efforts to roll back these precedents,” said Schneiderman in an August statement.

The current High Court bench is appreciably more conservative than the one that upheld affirmative action in 2003, with Justice Kennedy poised to be a crucial swing vote. While Kennedy’s stance has been nuanced in the past, leaving open the possibility that the court could uphold very narrow race-based selection, he has never before voted in favor of affirmative action. This has supporters of diversity in higher education worried.

Critics have long argued that weighting race in the college admissions process is racially discriminatory and violates the Civil Right Law of 1964 and the 14th amendment, and in recent years seven states have banned the practice.

“We are really not trying to tell universities what criteria they should use in deciding whom to admit, but don’t discriminate on the basis of skin color.” said Roger Clegg, President of the Center for Equal Opportunity, a conservative think tank that focuses on race and ethnicity. He added that supporters of the policy exaggerate the implications of the policy being overturned.

“They say that if you don’t use racial preferences it will be a catastrophe and the sky is going to fall — it’s just not true. It will change the way the admissions offices have to operate, at Columbia or some places like that, but it doesn’t mean that all of a sudden these campuses are going to become really white. That is a real discredit to African American and Latino students that don’t need preferences to get in.”

But research has shown that while affirmative action bans tend to have a limited effect on minority enrollment at typical colleges, they have historically had a much more profound effect at the country’s most selective institutions. After a ban of affirmative action in the University of California system in 1995 for instance, minority enrollment at the top four universities dropped precipitously, though it has rebounded slightly in years since. The same might happen at the city’s stable of prestigious universities — Columbia University, New York University, Fordham Univeristy and a number of top CUNY schools.

And a May report published by the Community Service Society, a poverty advocacy group in the city, showed that Black and Latino access to the most selective CUNY schools has already begun to shrink. Stricter entrance standards at top-tier CUNY universities reduced Black and Latino representation from 36 percent of the student body to 29 percent during the 2000s.

“We know what will happen at these institutions,” said Shaw of New York’s colleges if affirmative action is ultimately struck down. “The University of California told us, to an extent, what would happen.”

UPDATE, October 10, 2012, 10:04 a.m.: City University of New York spokesperson Rita Rodin sent the following statement:

“The vast majority of students who come to CUNY are products of the New York City public schools and reflect the extraordinary diversity of the people of New York City. We are are proud of the fact that diversity is celebrated at CUNY where  our students trace their ancestry to more than 205 countries. In 2011 our undergraduate student enrollment 26 per cent black, 25 white, 29 percent Hispanic and 18 percent Asian.”

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2 Comments

  1. I am the author of the CSS report cited above. I’d like to offer a response to the CUNY statement at the bottom of the artcile. CUNY is indeed very diverse, but increasingly, its black and Latino students are enrolled in its community colleges, with far fewer at its four year colleges, and very few at the top five of its senior colleges after 2008. As a point of comparison, the 2010 freshman class at Baruch college was only 6% black, whereas even Harvard University’s 2010 freshman class was 11% black.

  2. The Community Service Society (CSS) report on access at CUNY’s highly selective four-year colleges is inaccurate. Enrollment for minority students has increased at our highly selective four-year colleges, thanks to the many students who transfer and enroll from community colleges as well as public and private senior colleges. Additionally, the CSS report overlooked the accomplishments of many minority students who enroll in CUNY’s selective four-year colleges where the University has recently invested more than $1 billion in capital and academic improvements. Furthermore, access without consideration to outcome is very much a dream deferred, especially in the competitive 21st century marketplace where a college degree is essential. So it is puzzling that CSS overlooked the positive outcome that more students from minority backgrounds are graduating from CUNY colleges than at any time in its history. Finally, the CSS researcher, in his comments appended to the story, employed disparate data to support his premise that Harvard College is more diverse than Baruch College. The researcher cites the percentage of black students who enrolled as freshmen at Baruch in 2010 and compares that with the percentage of black students admitted to Harvard that year, many of whom never actually enrolled. In reality, black enrollment at Baruch College is more than three times greater than black enrollment at Harvard College.

    Michael Arena
    University Director for Communications and Marketing
    The City University of New York