The naming of White House counsel Harriet Miers to replace retiring Supreme Court Justice Sandra Day O'Connor has provoked serious concern among some conservatives. They worry that Miers may take positions all too similar to O'Connor's on issues like affirmative action. O'Connor was often the swing vote on controversial social issues from abortion to school prayer, and she actually wrote the majority opinion in one of the most important decisions on affirmative action in the last two decades. Writing for a 5-4 majority in a University of Michigan law school case, Grutter v. Bollinger, O'Connor upheld the use of race to achieve diversity, but she then joined the late Chief Justice William Rehnquist and Justices Scalia, Thomas, Kennedy and Breyer to reject the university's affirmative action program for undergraduates in Gratz v. Bollinger. Most conservatives hoped that with O'Connor gone, the Supreme Court might revisit affirmative action with a decision that once and for all rejects racial preferences as permissible public policy. But it may be that even without further action by the court, the practice of granting preference to minority students is beginning to lose favor on college campuses.
A recent study by two sociologists at the University of California at Davis, which looked at public and private undergraduate admissions at some 1,300 institutions from 1986-2003, concluded that the number of schools that considered race as a factor in admission declined sharply after 1995. After holding steady for nearly a decade, the proportion of public four-year institutions that acknowledged using race as a plus-factor in admission declined from 60 percent to 35 percent, while the percentage of private schools using preferences fell from 57 to 45. The study's authors conclude that litigation and the threat of litigation were factors in discouraging schools from taking race into account in admitting students. Many conservatives worried after the University of Michigan decisions that schools would feel justified in continuing to use racial preferences, but the opposite may be happening.
For at least two decades following the 1978 Bakke decision that first introduced "diversity" as a "compelling state interest" permitting race-based preferences in admissions, most elite colleges and universities boldly applied racial double-standards in determining whom to admit. In analyzing admissions data from nearly 70 public undergraduate and graduate programs, my Center for Equal Opportunity (CEO) found that the schools we studied routinely admitted black and Hispanic students with substantially lower grades and test scores. In many instances, being black or Hispanic did not appear simply to be one among many factors weighed by the schools, but the decisive factor. In a separate study, George Mason University professor David J. Armor found that at the University of Virginia in 2003, a black student was 106 times more likely to be admitted than a white student with the same grades and test scores, while at William and Mary Law School, the odds ratio favoring black students was 267 to 1. But in the wake of Grutter and Gratz, schools are struggling with how much weight they can give race or ethnicity without running afoul of the law.
The rollback of affirmative action won't necessarily mean fewer opportunities for blacks and Hispanics, however. More blacks and Hispanics are going to college than at any time in our nation's history. Data from the Census Bureau and the National Center for Education Statistics show that blacks and Hispanics constitute nearly one quarter of the undergraduate population at four-year institutions and 36 percent of community college enrollment. Over the decade 1993-2003, black enrollment in higher education grew from 10 percent to 13 percent of combined undergraduate and graduate students. Hispanics posted even more impressive gains over the same period, from 4 percent of all college students to 10 percent. The decline in race-based admissions suggests more of these students may have ended up at colleges and universities that better matched their preparation levels, schools where skin color was no longer the ticket for admission, and where they could compete on an equal footing with their white and Asian peers. That is certainly the case in California, which banned racial preferences in college admissions at state schools in 1996. Even without the noblesse oblige of a Supreme Court justice to place a thumb on the scale on their behalf, blacks and Hispanics are demonstrating they are capable of succeeding the old-fashioned way -- through hard work and their own efforts.