Obama's Affirmative Action Trap

    Last week, a small article appeared in the Wall Street Journal outlining a development that could have very have very large political and policy significance in 2010 and 2012. The article describes the Obama Administration’s decision to file an amicus brief before the 5th Circuit Court of Appeals supporting a racial affirmative action program at the University of Texas at Austin. 

    Many assume that the issue of affirmative action in higher education was settled by a 2003 U.S. Supreme Court decision involving the use of racial preferences at the University Michigan Law School.  But as I outline in an article for The American Prospect magazine online, the issue is very much alive.

    For one thing, there has been a significant change in the Supreme Court’s makeup since the Grutter v. Bollinger decision affirming the use of race seven years ago.  Justice Anthony Kennedy, who dissented in the 5-4 Grutter decision, is now the swing justice on the Supreme Court, with conservative Justice Samuel Alito having replaced the more moderate Sandra Day O’Connor.

    For another, conservatives have shrewdly picked up on a provision in the Grutter decision that requires universities to examine race-neutral alternatives before they begin basing admissions decisions on the race of applicants.  In the case at hand, UT Austin employed two such alternatives – a program to provide a leg up to socioeconomically disadvantaged applicants of all races and a program providing automatic admissions to students in the top 10% of their high school class — that produced even greater racial and ethnic diversity that UT’s original race-based system of admissions in the early 1990s.  When UT added race back into the mix in 2004, plaintiffs challenged the program as unnecessary.

    America’s first black president has been careful to emphasize that he generally prefers programs that aid economically disadvantaged people of all races, a disproportionate percentage of whom are African American.  That’s what makes the administration’s decision to support an explicit race-based program so surprising – and fraught with political danger.  For more on this issue, check out the American Prospect article here.