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Excerpted From: William C. Kidder, How Workable Are Class-based and Race-neutral Alternatives at Leading American Universities?, 64 UCLA Law Review Discourse 100 (2016) (125 Footnotes) (Full Document)


BillKidderSocial science has informed the U.S. Supreme Court's findings and rulings in a number of decisions affecting racial equality and equal opportunity. But the evidence provided to the Supreme Court is not always sound, and when it is not, claims of questionable empirical provenance can easily crowd the marketplace of ideas. One area in which social science has an important role to play is where doctrine intersects with real world consequences, as it does in the pending Fisher v. University of Texas (Fisher II) case. In the first Fisher v. University of Texas (Fisher I) case, the Supreme Court outlined considerations that should guide trial courts in deciding the constitutionality of university affirmative action programs and, in particular, the viability of race-neutral alternatives. The Fisher I Court stated, "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." The Court noted that while narrow tailoring "does not require exhaustion of every conceivable race-neutral alternative" the lower courts are required to "examine with care, and not defer to, a university's 'serious, good faith consideration of workable race-neutral alternatives."' The Fisher I Court declared that a university's consideration of race should be deemed impermissible if the reviewing court were to find that "a nonracial approach ... could promote the substantial interest about as well and at tolerable administrative expense." The Court concluded that strict scrutiny can be neither "strict in theory, but fatal in fact" nor "strict in theory but feeble in fact."

In response to these directives from the Court in Fisher I, on remand the Fifth Circuit panel soberly concluded, "Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program--in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all." The Fifth Circuit was likewise not persuaded by Ms. Fisher's arguments that socioeconomic disadvantage should replace consideration of race in University of Texas, Austin's (UT's) holistic admissions program; instead the court was persuaded by UT's citations to the social science research indicating that the utility of socioeconomic disadvantage as a means of yielding racial diversity is significantly limited. Moreover, the Fifth Circuit conceded that in the context of the Fisher litigation it was relatively "ill-equipped to sort out race, class, and socioeconomic structures" and that wishing that race no longer matters "does not make it so."

How the Court rules in Fisher II will be revealed soon enough--with Justice Scalia's passing and Justice Kagan's recusal, the most plausible scenarios have Justice Kennedy casting the decisive swing vote in a 4-3 decision (or 3-13 decision akin to Justice Powell's opinion in Regents of the University of California v. Bakke), or perhaps because of the problems around plaintiff's standing and/or the University's Eleventh Amendment immunity, the Court will dismiss this latest certiorari petition as improvidently granted. Regardless of the exact outcome in Fisher II, the social science questions around percent plans and class-based race-neutral alternatives are important in the post-Fisher constitutional landscape that U.S. colleges and universities must operate within for the foreseeable future. Accordingly, within the space constraints of this Essay, I attempt to summarize and synthesize the contemporary social science and policy scholarship relevant to the questions of race-neutral alternatives. As will be demonstrated below, the consensus conclusion of social science researchers is that percent plan and class-based alternatives at the undergraduate level are neither substantively effective nor cost-efficient substitutes for race-conscious admission programs at leading American universities.

The question I address in this Essay is whether, when the goal is to achieve racial and ethnic diversity in the student body, class can substitute for race in university admissions. This question and associated value implications are analytically distinct from the important social policy justifications supporting socioeconomic diversity for its own sake. Percentage plans and affirmative action bans are discussed together in this Essay because of frequent overlap between the two in situations the courts have been called on to address. The social science questions I address in this Essay are also separate from doctrinal questions about whether percentage plans and class-based efforts might have constitutional vulnerabilities of their own.

For reasons of organization and economy, in this Essay I draw a pragmatic distinction between primary sources that are the principal focus of discussion herein and additional sources that round out the social science literature responsive to particular questions. The primary works discussed in this Essay are largely made up of peer-reviewed social science pieces published within the last half-dozen years or so. Some additional works are included in this primary category because they are repeatedly cited in various Fisher I and II amicus briefs and deserve comment or criticism for that reason alone, particularly when the notable absence of scholarly peer-review may have contributed to sloppy and/or misleading claims. The additional works are noted in this Essay at various points to reinforce certain themes and to provide readers with a sense of the weight of social science authority. Full citations for these additional works are provided in Appendix A.

[. . .]

The weight of social science research, as outlined in this Essay, supports the conclusion that socioeconomic status is not an effective alternative to race-conscious measures with respect to undergraduate diversity at selective colleges and universities in the United States. In addition, the very high cost of socioeconomic-based approaches (due to the combination of increasing financial aid commitments and foregoing tuition revenues) is difficult to reconcile with the U.S. Supreme Court's consideration of "tolerable administrative expense." In the process of reviewing the empirical studies and financial data discussed above, I've emphasized that increasing socioeconomic diversity can be supported for social policy reasons separate from questions about race-neutral alternatives--in other words race and class need not be presented as a false choice. Regarding this last point, much more important than anything I can say about the topic is what American colleges and universities choose to do in the real world. Recently the American Council on Education (ACE) administered a first-of-its-kind national survey of U.S. undergraduate admissions and enrollment management officials at 338 four-year colleges and universities (combined enrollment at these schools was 2.7 million students). The ACE admissions survey found that, among institutions that employ race-conscious measures, 74 percent consider socioeconomic disadvantage in the admissions process, but at institutions that do not consider race, only 27 percent look at socioeconomic disadvantage in admissions. The false choice of race or class is also belied by recent research indicating that colleges and universities with higher levels of race and socioeconomic diversity can uniquely leverage educational benefits of diversity for their students.

Associate Vice Chancellor and Chief Compliance Officer, University of California, Riverside; B.A. and J.D., University of California, Berkeley.