(PDF) (DOC) (JPG)December 20, 2014

Adam Rosario [*]

Public opinion has shown that the use of race as a factor in university admissions is controversial and generally unpopular (Gallup Poll, 2013). In recent years, states have passed constitutional amendments, statutes, and executive orders that, under the guise of anti-discrimination, are intended to bar public universities from considering race in their admissions decisions (Moses, Yun and Marin, 2009). In addition, the Supreme Court’s more recent decision in Fisher v. University of Texas-Austin 570 U.S. _ (2013) highlights that the Supreme Court is becoming more hostile and suspicious of race conscious admissions.[†] These trends are causing public universities to rethink how to create a racially diverse student body, and many have turned to using socioeconomic status to provide that diversity. Although the experiences have been mixed, socioeconomic status may ultimately be the most effective means of creating a racially diverse student body.

In many ways the race-based admissions system has been operating on borrowed time. Although the Supreme Court in Grutter v. Bollinger 539 U.S. 306 (2003) adopted Justice Powell’s plurality opinion in Regents of the University of California v. Bakke 438 U.S. 265 (1978) that using race-based admissions to obtain a diverse student body is a compelling state interest, the majority opinion explicitly warned colleges that this could not remain a compelling interest indefinitely. In Grutter’s majority opinion Justice O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The most literal interpretation of that excerpt would mean that the Supreme Court would revisit the issue and may even be ready to reverse Grutter in 2028. However, in the years since the Grutter decision the makeup of the Court has changed, with Justices O’Connor, Souter, Stephens and Chief Justice Rehnquist’s seats now occupied by Justices Alito, Sotomayor, Kagan, and Chief Justice Roberts, respectively. More importantly, Fisher underscores the significance of this change in the Court, where the majority is now hostile to the use of race in university admissions (see, for example, the majority opinion in Schuette v. BAMN (2013), Justice Scalia’s concurrence and Justice Thomas’s dissent in Fisher). Even more troubling is that there are a number of states that have taken actions to bar their public colleges and universities from using race in admissions. Taking these points into account, colleges and universities cannot assume they will be able to use race-based admissions until 2028 and must prepare for other means to draw a racially diverse student body. Considering socioeconomic status may not only be the best option, but may even address the original intent of affirmative action policies.

In order to understand why socioeconomic status, or class-based admissions, may be the best alternative to race-based admissions, it is best to revisit the original purpose of affirmative action. The beginnings of ‘affirmative action’ are rooted in Executive Order 10925 signed by President Kennedy in 1961, which directed federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Similar language appears in the Civil Rights Act of 1964. Although such actions may have been passed in the hopes of improving race relations or increasing diversity in workplaces, schools, and neighborhoods, it would be a misunderstanding to purport that these policies intended to have that singular effect. The true intent was to counter broad discrimination in education, employment, and daily life, which placed minorities into an underclass that lacked the education and capital to overcome the poverty and unemployment that disproportionally affected these groups. Undoing the economic disadvantages that racial discrimination caused was far more important and realistic a goal than was undoing the past wrongs of slavery and segregation. Laws that prohibited discriminatory hiring practices meant there was a better chance for minorities to gain employment in areas they were once shut out from, even when qualified. Typically these areas paid better wages. Improving the dire economic situation that disproportionately affected racial minorities would cause a ripple effect and improve life for minorities in other ways, such as educational attainment (Brooks-Gunn and Duncan, 1997).

The advantages of using socioeconomic factors in admissions

There are two arguments that support the use of socioeconomic factors to attain diversity in colleges as a substitute to using racial or ethnic distinctions. First, there is a correlation between race and socioeconomic status. In a 2007 study, the National Center for Education Statistics (NCES) concluded that Black/African American and Hispanic children are three times more likely to live in poverty than White children. The poverty rates for smaller minority groups such as Native Americans and Asians also exceed that of Whites. In contrast, many would point out that there is a larger population of White children living in poverty, and this has been largely true when comparing Whites to Blacks or Latinos, respectively.[‡] However, this is no longer the case. In 2007, the number of Hispanic children living in poverty, 4.4 million, surpassed the number of White children living in poverty, 4.2 million. Between 2007 and 2010 the number of Hispanic children living in poverty rose dramatically from 4.48 million to 6.11 million. Due to the 2008 recession there was an increase in the number of children living in poverty across racial lines, however Hispanic children were disproportionately affected with a rate of increase two and half times greater than White children and three times greater than Black children (Lopez and Velasco, 2011).

Further evidence that underscores the correlation between race and socioeconomic factors can be seen beyond measuring poverty rates. Poverty not only affects children at home, but also in terms of their education. Black and Latino students are more likely to attend high poverty, underfunded, urban schools (Brooks-Gunn and Duncan, 1997, p. 66). Although some minorities may excel within these schools they will be exposed to less rigorous programs, such as honors and Advance Placement (AP) classes, which are more accessible to students in predominantly White schools that tend to be better funded (Darling-Hammond and Post, 2000). Teachers within these schools may be less prepared to teach such curricula (Darling-Hammond and Post, 2000), and also have lowered expectations for their students (Roberts, 2011). Not only is it the case that high poverty neighborhoods are largely Black and Latino, but these neighborhoods often have less access to social services than predominantly White neighborhoods (The National Poverty Center, 2009). In turn, these substandard educational factors have disadvantaged racial minorities economically.

The second argument that supports the use of socioeconomic factors to ensure diversity within colleges and universities is the changing demographics of the United States. A point of critique about using socioeconomic factors is that even though poverty and joblessness affect Blacks and Latinos at a higher rate, when viewed in raw numbers, Whites affected by poverty and unemployment outnumber both groups. Although this may be true in terms of measuring the general population, college admissions deal predominantly with a specific age group: the average college freshman approximately eighteen years of age. Therefore, the college admissions system is more focused on children living in poverty, rather than focusing on poverty on an aggregate level. As mentioned above, since 2007 Hispanic children living in poverty outnumber White children living in poverty, with Black children following (Lopez and Velasco, 2011). Therefore the critique that Whites make up too significant a portion of the poor is a misrepresentation in regards to how effective socioeconomic factors can be when creating a racially diverse student body.

However, putting that argument aside, by 2043 the United States will become a majority-minority nation (Frey, 2009). Simply put, this means that Whites will no longer account for over fifty percent of the population, but they will still make up a plurality of the U.S. population. This dramatic change will occur more quickly in specific states. For instance, in 2013 there were fourteen states in which the majority of children five and younger were no longer White children (Frey, 2009). The Brookings Institute estimates that by 2018 those eighteen and younger, the most important age group to college admissions, will no longer be majority White. Even more striking is that by 2060, Hispanics, not Whites, will constitute a plurality in this age group. The general trend is that, as a percentage, ethnic groups, excluding Blacks/ African Americans and Whites, will increase, while Blacks and African Americans will remain steady around thirteen percent of the total population (Frey, 2009). A trend leading towards a generally more diverse population will mean that there will be a more ethnically diverse pool of students from which colleges and universities can draw their freshman classes.

As attaining racial diversity becomes easier, this may be an opportunity for colleges to use socioeconomic factors not only to boost minority enrollment, but also to increase the enrollment of those affected most by poverty. “Seventy-four percent of the students at the top 146 highly selective institutions come from the top quarter of the socioeconomic status scale, just three percent came from the bottom socioeconomic status quartile, and roughly 10 percent came from the bottom half of the socioeconomic status scale” (Carnevale and Rose, 2003, p. 106). A college education can lift impoverished children out of their current circumstances, break the generational effect of poverty, and provide a better foundation for future generations. In many ways children of low socioeconomic status face more disadvantages as a group than do any particular racial or ethnic groups (Carnevale and Rose, 2003). When looking at SAT scores, on average black students performed 59 points below White students. However, the most economically disadvantaged student performed on average 399 points below the most economically advantaged student (Kahlenberg, 2012). Overall, a new affirmative action for socioeconomically disadvantaged children can serve as a new mission for colleges along with racial diversity (Carnevale and Strohl, 2010).

Two case studies on the use of socioeconomic factors in college admissions

There are two case studies that may shed light on how effective using socioeconomic factors in college and university admissions can be. In 1996 California voted on and passed Proposition 209, which stated that: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” This amendment to the California State Constitution effectively barred public universities from using race as a factor in their admissions processes. The result was a precipitous drop in the percentage of minorities enrolled. In 1995, the entering freshman class at University of California- Berkeley was about sixteen percent Hispanic and seven percent Black, but in 1998, after Proposition 209 went into effect, the entering freshman class was seven percent Hispanic and three percent Black (Kahlenberg, 2012, p. 36). Similar results were seen at the University of California- Los Angeles (Kahlenberg, 2012, p. 38). In response, the University of California system implemented a number of new policies in the hopes of countering the loss of diversity at their colleges and universities. Following the adoption of Proposition 209, the UC system began to use socioeconomic factors in place of race, and subsequently voted to end legacy benefits in admissions. In 2001, a top percent plan was introduced in which the top four percent of students in California high schools were guaranteed admission into the UC system, but not necessarily their school of choice. And lastly, in 2002 the UC system implemented a “comprehensive review” in which more socioeconomic factors were introduced, such as: family members with disabilities, where students live, where they attended school, and what opportunities were available at the school (Kahlenberg, 2012, p. 33-35).

The result was that by 2010 the percentage of Hispanic freshmen entering UC- Berkeley and UCLA increased, yet remained below the pre-Proposition 209 rates (pre-1997). The percentage of Black freshmen at UC-Berkeley and UCLA however, continued to fall steadily since 1997. A reason for the slight rise in Hispanic enrollment may also be attributed to an increase in the proportion of high school diplomas awarded to Hispanic children in California high schools, which increased from 25 percent in 1995 to 40 percent in 2010 (Kahlenberg, 2012, p. 38). Conversely, the percentage of high school diplomas awarded to black children in California remained relatively stagnant.

Interestingly, the implementation of a top percent plan in California did not lead to greater racial diversity in the state’s public universities, as did the implementation of top percent plans in Texas and Florida. In 1996, before Grutter, the Court of Appeals for the Fifth Circuit issued a decision in the closely watched case Hopwood v. Texas (78 F.3d 932) (Horn and Flores, 2003). In Hopwood, the Fifth Circuit struck down the race-based admissions policies used by the University of Texas-Austin School of Law, finding that the policies violated the Equal Protection Clause of the Fourteenth Amendment. In response, all colleges and universities in Texas abandoned race-based admissions (Kahlenberg, 2012). In 1997, the year after Hopwood, the minority enrollment in the entering freshman class at the University of Texas-Austin, the flagship public university in Texas, was about two percent Black/African American and twelve percent Hispanic/Latino. That same year the Texas state legislature passed House Bill 588 enacting the Top Ten Percent plan. Along with using socioeconomic factors, UT- Austin was able to increase underrepresented minority enrollment in its entering freshman classes from two percent Black and thirteen percent Hispanic in 1997 to five percent Black and nineteen percent Hispanic in 2007 (Kahlenberg, 2012, p. 29).

In 2008, Colorado was considering a ballot measure with the exact same wording as California Proposition 209 (Farley, Gaertner, and Moses, 2013). Although the ballot initiative failed by a slight margin, the University of Colorado- Boulder recognized that it needed to develop an alternative plan to race conscious admissions. The university commissioned a study known as the Gaertner study, named after Matthew N. Gaertner, a doctoral student at CU- Boulder’s Graduate School of Education, which showed an admissions scheme that substituted socioeconomic factors for race conscious admissions would increase minority representation at University of Colorado- Boulder. The study proposed two factors to replace race, an “overachievement index” and a “disadvantaged index” (Gaertner, 2011). The “disadvantaged index” measures the likelihood that a particular student will attend a four-year college, with respect to the negative effects of that student’s low socioeconomic status and lack of opportunity. The “overachievement index” measures the student’s performance (e.g. courses, GPA, standardized test scores, etc.) compared to how the student is expected to perform with respect to that student’s socioeconomic status (Gaertner and Hart, 2012).

Using these indexes, ten admissions officers reviewed 478 applications already reviewed under the race conscious admissions standards. No information was given that showed the applicants race. The results showed that of the 478 applications reviewed, more students of lower socioeconomic status were admitted, and the admissions rate for underrepresented minorities (Black, Hispanics, and Native Americans) increased from 56 percent to 65 percent. In total, 365 applicants were accepted under the class based policy compared to the 352 applicants admitted under the race-based policy (Gaertner, 2011, p. 23). Furthermore, the mean SAT, ACT, and GPA scores of those admitted under the class based admissions policies did not greatly deviate, as many assumed would be the outcome­, from the mean of those admitted under the race-based plan (Gaertner and Hart, 2012, p. 394).

Possible critiques and the way forward

There are many criticisms against using socioeconomic status as a substitute for race or ethnicity. The larger criticisms question whether or not the policy can maintain diversity. The majority of this paper acts to counter that argument, and tries to show that socioeconomic status is in fact a feasible alternative to race-based college admission policies. However, there are more subtle arguments against socioeconomic status that should be highlighted.

In 2011, a group of small liberal arts colleges filled a joint amicus brief in Fisher. By and large the joint amicus brief argued in favor of University of Texas- Austin, but took the time to argue in favor of race-based admission policies by dismissing socioeconomic status as a viable alternative. The brief contained the results of a study commissioned by Williams College which concluded that a socioeconomic based admissions scheme would cut its pool of minority applicants in half, create a pool of minority applicants that would have an academic record “considerably lower than it now can select from”, “enlarge the existing socio-economic imbalance since a larger majority of [minority] applicants would be poor,” and lead to increased stereotyping on campus (Brief for Amherst College et. al. as Amici Curiae).

In many ways Williams’ argument is that colleges should, and must, be able to recruit and admit middle and upper class minority students as actively as those minorities of low socioeconomic status. Keep in mind that upper and middleclass minorities are not likely to suffer from the same disadvantages that affect minorities of low socioeconomic status. Upper class and middle class minority students will attend better schools that are well-funded, live in better neighborhoods, and have access to more opportunities because of this. On some level these smaller private liberal arts colleges, which are more expensive than large public universities, may be wary of admitting poorer students because of the debt load that these students will carry after graduation. Information about the average debt load a student carries when graduating is a figure prospective students and college rankings look at carefully. Furthermore, admitting students of low socioeconomic status may strain these smaller liberal arts colleges, which do not have as much financial aid to disperse as large public universities. Such strains on financial aid departments may make it difficult to diversify the student body in other ways, such as offering athletic scholarships.

Lastly, using socioeconomic status in college admissions raises the question of how the Supreme Court will look at the use of these new admission policies. One of the main benefits of using socioeconomic status in college admissions is that defending distinctions based on class is much easier than those that involve race. There are a few cases that must be highlighted to better understand the Supreme Court’s equal protection jurisprudence in regards to distinctions based on income, wealth, or socioeconomic status. The first case is San Antonio Independent School District v. Rodriquez 411 U.S. 1 (1973). In this case, the Court was reviewing a tax scheme that Texas used to fund its public school system, wherein half was paid by the state and the remaining half by local property taxes. Families in lower income areas sued and claimed that the tax scheme discriminated against students living in poorer school districts, and that their children were receiving a substandard education when compared to children in more affluent districts. The District Court ruled in favor of the less affluent families, reasoning that wealth was a suspect classification and therefore the Texas tax scheme had to pass the high bar of strict scrutiny, which it did not. The Supreme Court disagreed, determining that class distinctions based on wealth and income do not qualify as a suspect class. In a broader view the opinion stated that Texas was using its plenary authority of taxation, and that to rule the scheme as unconstitutional would “have the Court intrude in an area in which it has traditionally deferred to state legislatures.” Historically, for purposes of taxation the Court has recognized the states’ “broad discretion” to make classifications. The Court further reasoned that “the Equal Protection Clause does not require absolute equality or precisely equal advantages,” and the threshold was that the state provide poor children an adequate education, not an equal education. Since distinctions based on wealth or income are not suspect classifications and education is not a fundamental right, the Court applied the rational basis test.

In Harris v. Mcrae 448 U.S. 297 (1979), the Supreme Court determined that poverty is not a suspect class. In 1976 Congress passed a statute which included a provision, commonly referred to as the “Hyde Amendment,” which prohibited the use of federal funds from Medicaid, a government sponsored health program for the poor, to reimburse the cost of an abortion. A pregnant Medicaid recipient named Cora McRae filed suit challenging the law as discriminating against her for being poor and for invasion of privacy. In a five to four decision the Supreme Court disagreed and reasoned that “poverty, standing alone, is not a suspect classification.” In the plainest of terms the Court concisely lays out its equal protection jurisprudence on such subjects in Romer v. Evans 517 U.S. 620 (1996), writing: “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” These cases together indicate that courts might support class distinctions in college admissions by public universities because instead of pointing out racial differences, socioeconomic status “[identifies] the characteristics of the advantaged and disadvantaged classes that may justify their disparate treatment” (City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)). This sets a lower bar of scrutiny for socioeconomic status-based admission policies to meet, and thus makes it easier to implement these policies.

Using socioeconomic factors today in place of race-based admissions may be challenging, as has been in California. However, the Gaertner study in Colorado is a promising look at the viability of such policies, and underscores the irrefutable association between underrepresented minorities and low socioeconomic status. As the demographics in the United States shift, there will be a larger pool of minority students for colleges to draw from, which means maintaining racial diversity at colleges and universities will be less challenging. Furthermore, the Supreme Court’s precedent, denying the economically disadvantaged suspect classification, will make such distinctions easier to implement, unlike distinctions of race. In all, colleges should begin preparing for the Supreme Court’s inevitable overturning of Grutter, and develop plans to insure that minorities are not left behind. Developing admissions schemes that use socioeconomic factors to attain diversity will accomplish that goal.

References:

American Psychological Association. (2014). Factsheet: Ethnic and Racial Minorities & Socioeconomic Status. Retrieved from: http://www.apa.org/pi/ses/resources/publications/factsheet-erm.aspx

Brief for Amherst College et. al. as Amici Curiae Supporting Respondents, Fisher v. University of Texas, 570 US ___ (2013) (no. 11-345). Retrieved from: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-345_respondentamcuamherstetal.pdf Pg 22-24

Brooks-Gunn, Jeanne and Greg J. Duncan. (1997). The Effects of Poverty on Children. Future Child. Retrieved from: http://www.princeton.edu/futureofchildren/publications/docs/07_02_03.pdf

Carnevale, Anthony P. and Jeff Strohl. (2010). Rewarding Strivers: Helping Low-Income Students Succeed in College. The Century Foundation Press. Retrieved from: http://tcf.org/assets/downloads/tcf-CarnevaleStrivers.pdf

Carnevale, Anthony P. and Stephen J. Rose. (2003). Socioeconomic Status, Race/Ethnicity, and Selective College Admissions. Century Foundation Press. Retrieved from: http://tcf.ejaeworks.com/assets/downloads/tcf-carnrose.pdf

Dale, Charles V. (2005). Federal Affirmative Action Law: A Brief History. Congressional Research Service. The Library of Congress. Code RS22256. Retrieved from: http://fpc.state.gov/documents/organization/53577.pdf

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Horn, Catherine L. and Flores, Stella M. (2003). Percent Plans in College Admissions: A Comparative Analysis of Three States’ Experiences. Cambridge, MA: The Civil Rights Project at Harvard University. Retrieved from: http://civilrightsproject.ucla.edu/research/college-access/admissions/percent-plans-in-college-admissions-a-comparative-analysis-of-three-states2019-experiences/horn-percent-plans-2003.pdf

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[†] The Court’s opinion in Fisher stated that the Fifth Circuit erred in not applying strict scrutiny when reviewing UT-Austin’s race-based admissions plan. Justice Kennedy’s dissenting opinion in Grutter v. Bollinger 539 U.S. 306 (2003) called for the adoption of the strict scrutiny standard, which he stated that the Grutter majority failed to adopt from Justice Powell’s plurality opinion in Regents of the University of California v. Bakke 438 U.S. 265 (1978). Justice Thomas and Scalia, in their concurring opinion in Fisher openly called consideration of race in admissions unconstitutional. In Schuette v. BAMN (2013), the Court approved Michigan’s constitutional amendment, enacted by ballot initiative, which banned race-based admissions policies at public universities. The Michigan constitutional amendment under review in Schuette is a verbatim copy of California Prop. 209.

[‡] According to the U.S. Census Bureau there were 16.4 million children under the age of 18 living in poverty. Of that 16.4 million, 5 million are White (Non-Hispanic), 4.8 million are Black, 6.8million are Hispanic, and half a million are Asian. Together, Blacks and Hispanics account for 11.6 million of the 16.4 million children living in poverty (U.S. Census Bureau, 2010, pp. 68-73).

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