What Should Obama Do on Affirmative Action?

President Obama, facing high unemployment and a sluggish economy, may soon encounter a new obstacle in his quest for re-election: the re-emergence of affirmative action in higher education as a political issue. The odds seem increasingly likely that the U.S. Supreme Court will take up a suit against the University of Texas at Austin, re-introducing the issue of racial preferences that has been largely dormant since the 2003 Supreme Court Grutter decision affirming the use of race in admissions.

The tricky politics of affirmative action for Obama is an important feature of two new books, Still a House Divided: Race and Politics in Obama’s America by Desmond S. King of Oxford and Rogers M. Smith of the University of Pennsylvania (a volume I reviewed this week in The New Republic); and The Persistence of the Color Line: Racial Politics and the Obama Presidency, a trenchant analysis by Harvard Law School professor Randall Kennedy.

Obama has thus far been able to dodge affirmative action in part because he’s been fortunate that his opponents have not exploited the issue. As Kennedy writes: “For reasons that are unclear, John McCain refused to pull out all of the racial stops at his disposal in his fight with Obama…McCain could have done more to create a problem for Obama by calling attention to their differences over the volatile issue of racial affirmative action,” but McCain “never seriously broached the matter; remarkably, in three nationally televised presidential debates, the issue of affirmative action never surfaced.”

Obama has sent mixed signals on the issue, giving both supporters and opponents reasons to be hopeful. He has, says Kennedy, been “studiously ambiguous,” on affirmative action, giving “fragmentary and elusive” remarks. In a little noticed move, the Department of Justice filed an amicus brief in the lower courts supporting racial affirmative-action policies at the University of Texas; and yet most of Obama’s rhetoric has been color blind, emphasizing his unwillingness to support race-specific programs for blacks, favoring instead class-based policies that will disproportionately benefit people of color. {snip}

For Obama, the University of Texas case poses enormous dangers. On the one hand, Obama faces a lingering skepticism among some white voters. {snip}

Of course, Obama could make a strong argument that all students–including whites–benefit when universities are racially diverse, but it’s not clear that this is how Americans will view the issue. {snip} The even starker issue of whether universities should consciously prefer applicants of one race over another is always a difficult political sell; in tough economic times, when Americans feel less generous, the case is all the more difficult.

At the same time, there are large dangers for Obama in opposing affirmative action outright, as Kennedy suggests. {snip} Kennedy believes that affirmative action is a “litmus test” issue for many blacks and that moving away from racial affirmative action would be seen “as betrayal.”

If the Supreme Court takes the Texas case, what should Obama do? On both the merits and the politics, one can make a strong case that the president needs to get ahead of the curve, seize the populist moment in American politics, and come out for a policy of affirmative action that benefits economically disadvantaged students of all races.

Such a move, Kennedy rightly suggests, would engender an outcry from middle and upper-middle class African Americans who now benefit disproportionately from racial preference in college admissions. But in response, Obama could make clear to his most loyal supporters that his hand is being forced. The Roberts court is likely to curtail racial preferences no matter what Obama does, so why not avoid the political hit associated with a full-throated defense of racial preferences and instead begin to make the case for a new kind of affirmative action that can be shaped so as to continue to promote both economic and racial justice?

{snip}

Americans would likely support Obama on this shift; polls find that while they oppose racial preferences by 2:1 they support income-based preferences by the same margin. {snip}

{snip} If the High Court agrees to hear the Texas case, Obama will have to move beyond his strategy of avoidance. He should seize the opportunity to strike a blow for low-income and working-class students of all races.