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California has also sought to increase minority enrollment by reducing its reliance on standardized test scores and emphasizing other criteria such as low family income and being the first in a family to attend college. It also expanded its outreach efforts, working with schools in disadvantaged neighborhoods to better prepare students for college.
These efforts worked and minority enrollment at University of California schools is higher now than before the state banned affirmative action, said Richard Sander, a law professor at UCLA who filed a brief in the case along with Professor Stuart Taylor, a senior fellow at the Brookings Institution think tank.
Not everyone agrees that the measures in California have been sufficient. T he University of California itself filed a brief in support of the University of Texas, saying the number of black students at its most selective campuses has not fully recovered from the ban on affirmative action.
If the Supreme Court decides to take race out of the equation entirely, the number of African American, Hispanic and Native American students at state universities would “drop precipitously,” said Lee Bollinger, who was president of the University of Michigan at the time of the 2003 case and now is president of Columbia University in New York City.
Columbia is among dozens of selective private colleges that have filed briefs in the Fisher case, saying their racial diversity will suffer if the Supreme Court says race cannot be a factor in admissions. They argue that it is not possible for private institutions like Columbia and Harvard, which draw applicants from all over the country, to implement a percentage plan like the ones in Texas and California.
That argument could sway the Supreme Court to issue a narrow ruling that voids only the Texas program. But the court, more conservative than when Justice Sandra Day O’Connor wrote the University of Michigan decision in 2003, could reject race-based policies altogether.
O’Connor predicted that as universities grew more diverse, the need to consider race in admissions would expire in 25 years. She has since retired, and her replacement, Justice Alito, has opposed racial preferences and could help bring an earlier end to their use.
The focus of both sides during the oral arguments scheduled for Wednesday will likely be Kennedy, who voted against affirmative action in 2003, though he did not take as hard a stance as his conservative colleagues. In a dissent from the majority opinion that upheld racial preferences, Kennedy accused the majority of being too deferential to the University of Michigan.
“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives,” he wrote.