Fisher v. Texas: How Obama Should Talk About Affirmative Action

How Obama should talk about the Supreme Court’s new affirmative action case.

How Obama should talk about the Supreme Court’s new affirmative action case.

The law, lawyers, and the court.
Feb. 21 2012 1:18 PM

What Obama Should Say About the Texas Affirmative Action Case

He should support class-based preferences that help all low-income students.

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The best thing the Supreme Court could do is make universities focus on the looming class divide in higher education. Racial affirmative action rarely benefits low-income and working class students; one study found that 86 percent of African-Americans at selective colleges are middle or upper-middle class. Overall, Century Foundation research has found that you're 25 times as likely to run into a rich kid as a poor kid on America's most selective 146 campuses. Over the last several years, universities announced a flurry of financial aid initiatives, but a 2011 analysis by the Chronicle of Higher Education found that the percentage of low-income students at the wealthiest 50 institutions has remained flat.

Polls by the Los Angeles Times and Newsweek have found that Americans oppose racial preferences in college admissions by 2:1 but favor income preferences by the same margin. The facts in the University of Texas case are tailor-made for President Obama to help the Democratic Party transition from supporting affirmative action based on race to preferences based on class. It’s not whether we should have affirmative action or whether we shouldn’t, it’s what kind of affirmative action should we stress: race-based or race-neutral?

Although Obama’s Justice Department sided with Texas in the lower courts, the president has himself always sent mixed messages about affirmative action, even suggesting that his own daughters do not deserve preference in college admission. And throughout his administration, Obama has wisely taken pains to avoid policies that smack of racial favoritism. When he came under pressure to address black unemployment, for example, Obama declared: “I can’t pass laws that say I’m just helping black folks. I’m the president of the United States.” Of course, affirmative action can be framed as a policy that helps nonminorities too, because the education of white students is enriched when colleges are racially and ethnically diverse. But it’s not clear how well that argument still washes with the public. And Obama has gained in the polls as he has pivoted toward economic populism in anticipation of a likely race against Mitt Romney and all his many millions. If the president uses the Texas case to side with class-based affirmative action, and low-income and working-class people of all races, he will solidify the populist case he’s trying to make.


Martin Luther King Jr. understood the power of such a stance. In the late 1960s, King concluded that while blacks certainly deserve compensation for past discrimination, he would support a colorblind Bill of Rights for the Disadvantaged, which would disproportionately benefit victims of historic discrimination. He wrote, “It is my opinion that many white workers whose economic condition is not far removed from the economic condition of his black brother will find it difficult to accept a ‘Negro Bill of Rights.’ ” President Obama has an opportunity to return to King’s vision. In doing so, he would help promote the life chances of working-class students of all races, who generally don’t benefit today from affirmative action in higher education. In Fisher v. Texas, a conservative Supreme Court is very likely to hasten this transition anyway. Better for Obama to get ahead of the game and help lead the way.