9. Living without it

At the University of Texas Law School, the halls are whiter than they once were. Three years after a federal court ruled in Hopwood v Texas that public universities in the state could no longer use race as a factor when considering applicants, there are a mere eight black students in a first-year class of 455 at the law school, a smaller percentage than in 1950.

Although Texas is ground zero in the fight over racial preferences in American universities, it is far from the only battlefield. Last November, voters in Washington State passed a referendum similar to California's Proposition 209, banning racial preferences in college admissions. In both Washington and Michigan, lawsuits similar to the Texas case have been filed against the public universities.

For 30 years, American universities sought to increase racial diversity by recruiting and admitting minority candidates, sometimes at the expense of white candidates with better qualifications. This practice went unchallenged until 1978, when the Supreme Court ruled that, although rigid racial quotas were unconstitutional, universities could take race into account since there was a “compelling interest” in promoting diversity in America's colleges.

Proponents of affirmative action, including most university administrators, feel they need only point to the decline of minority enrolment in the best public universities in California and Texas in the two years since the ban on racial preferences went into effect.

Conservative opponents of preferences admit that minority numbers have decreased at the most selective public universities in Texas and California. Yet they point to the fact that enrolment of blacks and Latinos throughout the state system has remained stable since 1996. The way to guarantee more minority students at the top universities in the future, conservatives argue, is to address the twin pillars of social disintegration: broken schools and broken families.

Opponents of racial preferences also accuse the other side of double standards: on the one hand lamenting the decline of black and Latino enrolment since 1996, yet at the same time ignoring the dramatic increase in the number of Asians admitted during that period. Long boasting the highest scores on standardised tests among minority groups, Asians have never needed preferential treatment from universities, and are now benefiting from the new system.

Both sides arm themselves with government studies and self-serving statistics; yet most people concede that very little can be done at the political level. The future of racial preferences rests with the courts. What the legal system cannot do, however, is address the root of the problem: the fact that black and Latino students still lag woefully behind their white counterparts. So long as this grim reality persists, the system will remain broken, and no amount of judicial tinkering will fix it.

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