Justice Kennedy, Fisher, and affirmative action

Dave Leonhardt from the New York Times says that Supreme Court Justice Anthony Kennedy could put an interesting wrinkle in the Fisher v. Texas affirmative action case about University of Texas admissions now before the Supreme Court.

And, depending on exactly how things play out, and who he could get to join him, Kennedy could perhaps preserve affirmative action, but with a twist ... a twist Kennedy probably wanted to see in Grutter.

And, that is that race really be a last resort, but that colleges be allowed to, even encouraged to, consider other factors in promoting diversity, like socioeconomic status, etc. Some of this would parallel current affirmative action.

The Kennedy dissent (in Grutter) leaves the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk — and help many minority applicants.

The most obvious is income. But others may be more important. If colleges gave students credit for coming from a low-income ZIP code, black and Latino students would benefit enormously, as they would from the consideration of wealth and family status. Only 27 percent of white students grow up in a single-parent family, compared with 60 percent of black children and 34 percent of Latino children.

Agreed, agreed, agreed.

For some time now, I've been wanting affirmative action in general to move beyond race.

It's good civil rights and civil justice, to get poor people of all races moved past rich legacy minorities, whether at the University of Texas or at Harvard.

It's also damned good politics. It might defang some racism of some tea partiers. It probably would have kept some of it from getting so entrenched, had Kennedy been able to get something similar a decade ago.