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Supreme Court to weigh in again on affirmative action

10:15 AM, Oct 10, 2012   |    comments
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The U.S. Supreme Court building June 27, 2012 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images)

WASHINGTON -- Racial preferences in college admissions usually are viewed as a boon to minorities at the expense of whites. But when the Supreme Court takes up Fisher v. University of Texas on Wednesday, one of the arguments it may hear is that for some minority students, affirmative action is quite negative.

A number of academics, and even some members of the U.S. Commission on Civil Rights, argue that by giving black and Hispanic students a leg up, the nation's premier universities often set them up for failure when a less competitive school would offer the better chance for success.

They cite books, studies and statistics showing that minority students often switch from rigorous fields of study, such as law or engineering, into easier majors such as communications or humanities. They say racial preferences don't help them pass bar exams or become college professors.

"Grades matter more than eliteness of law school," said Gail Heriot, a law professor at the University of California-San Diego and one of three civil rights commission members who filed a brief supporting Abigail Fisher's challenge to the University of Texas' affirmative action program.

Minority students who benefit from racial preferences, Heriot said, often should "thumb their nose at Princeton and go to a school where they're going to be a success."

That's the view of Richard Sander, a UCLA law professor and economist who studies racial preference programs. He argues in his book, Mismatch, written with Washington lawyer-journalist Stuart Taylor Jr., that preferences from elite schools can doom students to failure.

Rather than focusing on race, Sander said, colleges should offer incentives based on economic status - to all races, including whites. He says too many colleges have reverted to "admitting the most readily available minorities at hand," such as through legacy or sports programs, rather than targeting the poor.

"Our whole focus is on what will work," Sander said. "We're trying to make this a pragmatic discussion. It's been a very ideological discussion."

Their argument is refuted by others who cite studies showing the better the school, the brighter the future. A 2005 study in the journal Sociology of Education found that minority students at selective universities were more likely to graduate than minorities who attended less selective schools. A 2007 study by professors at Princeton and Northwestern found that ending affirmative action "would dramatically reduce the production of black lawyers."

One of those who might agree is on the high court: Justice Sonia Sotomayor has called herself "the perfect affirmative action baby" because of her admission into Ivy League undergraduate and law schools, despite not having the best test scores.

On the other hand, Justice Clarence Thomas, the court's lone black member, has denounced racial preferences. "Blacks can achieve in every avenue of American life without the meddling of university administrators," he wrote in dissenting from the court's decision upholding the University of Michigan Law School's affirmative action program in 2003.

Among the 73 briefs filed in support of the university's position are those from business executives and government officials who say their fields need college affirmative action programs to provide a stream of qualified minority applicants.

Another brief filed by former military leaders, including Colin Powell, Michael Mullen and Wesley Clark, warns that ending the practice "would seriously disrupt the military's efforts to maintain military cohesion and effectiveness."

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