Affirmative action fading from college scene

• Cases in Michigan%2C Texas could narrow the formula
• Eight states ban affirmative action in admissions altogether
• June 2013 ruling by high court raised bar for use of affirmative action

After more than 60 years, is the end of the road near for affirmative action in college admissions?

The idea of using race to help determine who gets a seat in public colleges has been under fire for decades. Eight states have essentially banned the practice, and a Michigan case pending before the U.S. Supreme Court could prompt others to do the same.

College officials nationwide got a wake-up call last June from the high court, which set a high bar for using race as part of a complex admissions program in Texas. Many observers say the combined weight of the two cases could finally push state universities to find another way to promote diversity.

"All the trends are pointing against the continued use of race in admissions," says Richard Kahlenberg of the Washington, D.C.-based Century Foundation, a liberal think tank. Kahlenberg has for years advocated using family income,not race, as a way to ensure that public K-12 schools and colleges have a diverse student body.

While the Supreme Court majority stopped short of outlawing race-based preferences in its landmark ruling in Fisher v. University of Texas in June, they said that colleges' use of preferences must be "narrowly tailored" and that colleges must prove that considering race is absolutely necessary to maintaining diversity. They sent the case back to a lower court, which recently heard new arguments. Observers say Fisher probably will end up back at the high court, bringing with it what could be the most definitive ruling so far on race in higher education.

"Colleges are going to have to think about what to do to comply with Fisher standards," says Gary Orfield, co-founder of the Civil Rights Project at UCLA.

Fisher is the latest in a string of affirmative action cases dating as far back as 1950, when the Supreme Court backed an effort by Heman Sweatt, an African-American student, to enroll at the University of Texas School of Law. The current originated in 2008 when Abigail Fisher, a white high school student, sued Texas' flagship university in Austin after she was denied admission. She said the university's practice of using race as a factor violated the U.S. Constitution's 14th Amendment, as well as the Civil Rights Act of 1964, two measures long used to protect the rights of minorities.

For years, Texas' public university system has automatically admitted all students in the top 10% of their high school graduating class, but Fisher just missed the cutoff. She demanded that the university admit her anyway and asked a judge to stop the state from using race as a factor in admissions when considering those who don't earn automatic admission. The court heard arguments in October 2012 and sent the case back to the lower court last June. In the meantime, Fisher attended and graduated from Louisiana State University. The University of Texas says its "holistic" admissions process considers students' race as well as test scores, community service, work experience and leadership skills, adding that the 10% rule drives most of its admissions. In 2010, the university reported that for the first time, white students represented a minority of incoming first-time freshmen.

A year after hearing Fisher, the justices last October heard arguments in a case from Michigan, where a 2006 state constitutional amendment banned racial preferences in public university admissions. Seven other states — California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire — do the same, and about 29% of students live in states where affirmative action is banned, Kahlenberg estimates.

Michigan Attorney General Bill Schuette says the state's position was summed up well by Chief Justice John Roberts, who said the best way to stop racial discrimination "is to stop discriminating on the basis of race."

"Our constitution requires equal treatment in college admissions, which is an expression by 58% of Michigan voters in 2006 that says it is fundamentally wrong to treat people differently based on race or the color of their skin," Schuette says. "It's just wrong."

A July 2013 study by Georgetown University scholars Anthony Carnevale and Jeff Strohl found that in 2009, white students were more "over-represented" among the USA's 468 most selective colleges than they had been in 1995. From 1995 to 2009, the nationwide share of young people ages 18-24 who were white dropped 6 percentage points, from 68% to 62%. But whites' share of freshman slots at the USA's most elite colleges dropped just 2 points during that same period, from 77% to 75%.

Another study, by Orfield's Civil Rights Project, found that 15 years after California's ban on racial preferences went into effect, increased competition has dropped the share of black in-state high school graduates admitted to UCLA from 47.6% of applicants to 13.7%; the percentage of Latino students admitted dropped from 54.9% of applicants to 14.8%. The percentage of white students admitted also dropped, but not as sharply.

Kahlenberg says the string of affirmative action cases has pushed universities to find alternative ways to create diverse freshman classes. He notes that Texas' 10% rule has resulted in higher levels of black and Latino representation. Other state systems have gotten similar results by eliminating preferences for children of alumni and bolstering financial aid, among other measures. These strategies have led to more racially and economically diverse classes "in a way the Supreme Court can't touch," he says. "I think that's the future of affirmative action."

Recent surveys have found that Americans don't like using race in admissions, Kahlenberg says, "but on the other hand, Americans don't want to see universities and American higher education re-segregated."

A decision in the Michigan case, Schuette v. Coalition to Defend Affirmative Action, is expected this spring. If a majority of eight justices rule in Michigan's favor (Elena Kagan, a former solicitor general, recused herself), it could prompt opponents of affirmative action in other states to push for similar bans.

But if the ban is overturned, states such as California again could weigh race in college admissions — and not a moment too soon, Orfield says. Admissions pressures there have become "very intense." He notes that UCLA alone last year received nearly 100,000 applications. "It's a big state, it's growing … and we haven't been growing the higher education system."

Contributing: Richard Wolf