Monday, April 28, 2014
The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action affirmed the ability of states to ban the use of racial preferences in state institutions of higher education. Although those committed to diversity in higher education view this decision as further evidence of the erosion and eventual demise of affirmative action, this decision also should serve as a wake-up call that the nation must undertake a renewed effort to close the opportunity gap in elementary and secondary education.
The Supreme Court has been tolling the death knell for affirmative action for many years. The Schuette decision is merely further evidence that the end is not far off. In the 2003 decision in Grutter v. Bollinger, the court approved the consideration of race as one factor among many in creating a diverse class at the University of Michigan Law School. However, Justice Sandra Day O’Connor’s majority opinion noted that given the growing number of minority applicants who had earned high test scores and grades, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
In the 2013 decision in Fisher v. University of Texas, the Supreme Court permitted colleges and universities to prove their continued need to sometimes consider the race of students to admit a diverse student body. Yet, the court’s constitutional analysis can trap many institutions between the Scylla of insufficient evidence on the racial composition needed to reap the benefits of diversity, and the Charybdis of specific evidence regarding how much diversity they seek, which the court is likely to label a quota.
Undoubtedly, Schuette’s approval of state bans on racial preferences will advance the eventual demise of affirmative action by removing all constitutional barriers to such bans. Schuette also will embolden supporters of those bans to seek similar bans in other states.
The erosion and impending demise of affirmative action must serve as a reminder that the continued need to use affirmative action is caused in substantial part by the nation’s failure to remedy the opportunity gap that continues to plague our nation’s elementary and secondary schools. Far too many minority students and poor students of all races continue to attend schools with the least effective teachers, inadequate resources and poorly maintained facilities when compared to their more affluent peers, as President Obama’s Equity and Excellence Commission report confirmed last year.
The need to end this deeply entrenched opportunity gap is a moral imperative for the foundation of a just and equitable society. Justice Anthony Kennedy acknowledged this when he stated that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children” in his 2007 opinion in Parents Involved in Community Schools v. Seattle School District.
Moreover, both those who support affirmative action and those who seek to abolish it bear the heavy costs of the educational opportunity gap. Research establishes that the current failure to provide an adequate education to all schoolchildren costs the nation billions in lost taxes, public assistance, criminal justice support and health care costs. For instance, the nation forfeits $156 billion in income and tax revenues during the life span of each cohort of students who do not graduate from high school. (“The Price We Pay: Economic And Social Consequences Of Inadequate Education,” Clive R. Belfield & Henry M. Levin, eds. 2007). Furthermore, the cost of the opportunity gap will increasingly weaken our economy as the changing economy demands more workers with higher-level skills and the number of Hispanic and African-American children becomes an increasingly larger share of the school-age population.
Affirmative action is in part a bandage that seeks to reduce the hemorrhaging from our broken elementary and secondary school system. It is important to keep this bandage in place as long as possible or the hemorrhaging will increase. Therefore, those committed to diverse institutions of higher education and a diverse workforce must continue to push for race-sensitive approaches as well as race-neutral means to achieve diversity in higher education.
In addition to these critical efforts, the United States must wake up to the need for comprehensive reforms that close the educational opportunity gap. Scholars, activists, business leaders and ultimately the public must call on leaders in Congress and the White House, as well as in state legislatures and local school boards, to take action to close this gap. Ultimately, if the nation fails to take on this challenge now, it does so at its own peril.
Kimberly Jenkins Robinson is a professor at the University of Richmond School of Law and a senior fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Contact her at email@example.com.