WASHINGTON — As the Supreme Court prepares to hear yet another challenge to the consideration of race or ethnicity in college admissions, civil rights lawyers and educators are sharpening new arguments to defend affirmative action or defuse the issue.
Within the next year, the court will decide a federal lawsuit that contests the admission of 20 percent of University of Texas applicants through individual evaluations that consider race as one factor of eligibility. The other 80 percent of the flagship system’s students are admitted because they graduated in the top 10 percent of their high school class.
How civil rights and educational arguments are framed before the public and the court, which has grown more conservative since upholding affirmative action in 2003, could play a role in determining whether growing numbers of black and Hispanic students can attend selective colleges across the country, which the U.S. Census Bureau projects will become majority-minority in 30 years.
At a recent conference of affirmative action officers, a prominent civil rights lawyer and a Stanford University professor argued that without affirmative action, colleges and employers do not select the best people because standard evaluation tools are biased against minorities.
“We have inefficient selection devices that have disparate impact,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. He said the bias does not result in the selection of those most qualified to succeed — whether for admission to university or employment.
Saenz (pronounced like “signs”) also encouraged discussion of the fact that some groups of non-Hispanic whites do benefit from affirmative action. He did not identify which groups, but they include women, the disabled and, in some cases, veterans.
Greg Walton, a psychology professor at Stanford, said minorities and women underperform on standardized tests because they fear confirming negative stereotypes about their academic abilities. “Stereotype threat” is the name given to that phenomenon.
“They face a psychological headwind that causes them to perform less well than they are capable, and, as a consequence, grades and test scores end up being biased. They underestimate the intellectual ability and potential of women and minority students,” Walton said.
Stereotype threat accounts for 75 percent of the “gender gap” on the SAT math test and 25 percent of racial-ethnic differences in SAT scores overall, Walton said.
“If we are ‘colorblind,’ we end up discriminating against people who contend with negative stereotypes,” he said. “We end up admitting less qualified whites and men, and rejecting more qualified minorities and women.”
Walton said research on the effects of stereotype threat provides “a new kind of defense of affirmative action.”
Both Saenz and William B. Harvey, dean of education at North Carolina A&T State University, believe that the new defense must abandon the traditional argument that affirmative action is compensation for past discrimination.
Saenz has pushed to shift the argument from the “retributive notion of affirmative action” to “transforming how we make decisions about selecting” the best college and job applicants.
Harvey suggested the contentious issue can be defused if colleges commit to a larger role in making sure more students of color receive the best academic preparation for selective colleges.
“I think it’s time for a reframing of the importance of affirmative action from a framework of social justice to one of human resource development,” he said.
North Carolina A&T has established a public high school on its campus, called Middle College, that enrolls black male students. All the school’s students have been graduating and going to college. Harvey said a similar school for black females is planned.
It is unclear how much help the new arguments will be with a Supreme Court that has been, as Saenz noted, skeptical of “race-conscious affirmative action in many contexts” for 35 years.
“The danger, of course, is the Supreme Court of today goes backward,” Saenz said. “We are all very concerned, despite the fact that it seems to be a very limited case, because of that longstanding Supreme Court skepticism” of affirmative action.
Walton suggested that the term affirmative action, in use for decades, should be modified to reflect that the consideration of race and gender counterbalances systemic biases and produces truly merit-based decisions. The Stanford professor speaks of establishing systems of “affirmative meritocracy” within educational institutions.
Saenz, Walton and Harvey appeared at the annual conference of the American Association for Affirmative Action held earlier this month. The executive director of the Washington-based organization is Shirley Wilcher, a Harvard Law School graduate who grew up in Boston.