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Students protest in support of affirmative action outside the Supreme Court during oral arguments in Schuette v. Coalition to Defend Affirmative Action on Oct. 15, 2013.

Andrew Burton/Getty Images

3 REALITY CHECKS ABOUT AFFIRMATIVE ACTION AT COLLEGES

The News: Leaders in higher education and civil rights are regrouping after the Supreme Court’s decision upholding Michigan’s ban on the use of race in college admissions at public universities.

The ruling cleared the way for more states, through legislation or voter initiatives, to prohibit affirmative action. California in 1996 was the first to approve a ban, and seven states have followed. Some anti-affirmative action groups have said they have no plans to expand their efforts. The New York Times, however, has reported that an organization is seeking Asian students for racial-discrimination lawsuits against three top universities.

The court did not rule on the constitutionality of race-conscious admissions policies, allowing its 2013 decision in Fisher v. University of Texas to stand.

The Take: Affirmative action in college admissions remains legal, by the letter of the law. But now that protection is squishier than ever before. Rather than rehash the legalese, here are three reality checks about affirmative action in higher education:

* Reality check No. 1: Affirmative action in college admissions was already on its way out. Two decades of legal and political opposition have caused many schools to alter or dismantle their affirmative action programs. Another nudge came in the Supreme Court’s ruling in Fisher, which directed the lower courts to apply greater scrutiny to schools’ use of race in admissions.

Today only about a third of public universities and half of private institutions still use race in their selection processes. Yet opponents have remained dogged. If they press on, they will be taking on the bloodlust that drove the Arizona-modeled immigrant crackdowns, even though net migration from Mexico had stopped.

* Reality check No. 2: Fear of a black and brown planet. In 1976 white students represented 84 percent of total enrollment in American colleges and universities, according to the Department of Education. In 2011 white students made up 61 percent.

Between 2009 and 2011, blacks and Latinos entered four-year institutions at a higher rate than that of whites. The white undergraduate population grew by less than 3 percent, while the share of blacks increased by 8.5 percent, and Latinos by 22 percent.

Gulp.

These are seemingly ominous trends for white people—enough of whom in Michigan were sufficiently frightened to help the affirmative action ban sail to passage. They no doubt found added motivation in the ballot language, which called for a prohibition of racial “preferences,” a dog whistle of a term that permits whites to feel victimized by the fallacy of reverse discrimination. The words “affirmative action,” which itself isn’t a preference but a reparative measure, didn’t appear on the ballot.

* Reality check No. 3: Alternatives are not as effective, leaving minorities still separate and unequal. How about eliminating admissions preferences for legacy applicants? It certainly advantages whites, but such a move at most selective schools is a pipe dream. Since more minorities come from lower-income families, how about shifting to class-based affirmative action (pdf)?

Advocates say that schools can admit comparable numbers of minorities by awarding financial aid based more on need than on academic merit, screening for first-generation Americans, and considering applicants’ family wealth and the concentrations of poverty surrounding their schools and households.

It would definitely be more politically palatable, but would it be as effective? In the states that have banned race-conscious policies, their public universities have enrolled fewer black and Hispanic freshmen.

And those upward trends in minority enrollment? Dubious.

Higher education has become a two-tiered system that perpetuates white privilege: Eighty-five percent of white students attend the top institutions, while 75 percent of blacks and Latinos attend open-enrollment or community colleges.

Just 22 percent of whites with a 3.5 GPA or higher in high school attend community colleges, compared with nearly a third of blacks and Latinos.

This is resegregation along racial and class lines. It proves that affirmative action has not ensured a “preference” for minorities over whites. It also proves that whites still have nothing to fear, and the preservation of their privilege is the only goal of this arrayed legal assault.

This is why, in one way or another, colleges still can’t avoid dealing with race.

CLEMENCY COULD BRING EARLY RELEASE FOR THOUSANDS OF BLACKS  

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President Barack Obama with Attorney General Eric Holder outside the U.S. Capitol. Holder’s Justice Department has expanded guidelines for nonviolent offenders to apply for presidential clemency.

PAUL J. RICHARDS/Getty Images

The News: The Department of Justice on Wednesday announced expanded criteria aimed at granting presidential clemency to thousands of federal inmates, particularly African Americans, who were ensnared in old sentencing disparities for drug crimes.

The initiative is part of an effort to reduce the prison population and end longer sentences mandated for crack cocaine than for powder cocaine during the “war on drugs” era. Early release is likeliest for crack offenders whose sentences would have been shorter if they’d been convicted under the 2010 Fair Sentencing Act (pdf), which lowered the disparity between mandatory-minimum sentences for crack- and powder-cocaine crimes.

Tens of thousands of federal inmates could be eligible for clemency. Under the new guidelines, the following offenders are eligible to request early release:

1. Inmates who served at least 10 years of their sentence

2. Offenders who likely would have received a substantially lower sentence if convicted of the same offense today

3. Nonviolent, low-level offenders with no ties to large-scale criminal organizations, gangs or cartels

4. Offenders with no significant criminal history

5. Inmates who demonstrated good conduct in prison

6. Those with no history of violence prior to or during their current prison term.

The Take: This initiative is unprecedented for a presidential administration, so by any measure, this could be big.

The number of people freed could be the largest by a president since Gerald Ford granted amnesty to draft dodgers during the Vietnam War. So big that the Justice Department is increasing the number of attorneys and streamlining the process for reviewing what are expected to be thousands of petitions for clemency.

Let’s step back and take stock of the devastation that America’s drug laws  have wrought on minorities, starting with the Rockefeller drug laws passed in the early 1970s in New York. The laws led to the criminalization, rather than treatment, of drug users and became a national model. Blacks and Latinos came to make up nearly 90 percent of felony drug offenders despite representing only a third of New York state’s population—and despite research showing rates of drug use and addiction to have been equal across racial and ethnic groups.

Today blacks and Latinos together make up an astonishing 60 percent of the U.S. prison population. Altogether, about half a million people are behind bars in federal and state facilities on nonviolent drug charges.

But clemency has its limits. Eligibility applies only to the roughly 216,000 inmates in federal prisons, not the remaining 1.3 million in state facilities or the 744,500 or so in local jails.

Another obstacle is that the Fair Sentencing Act hasn’t been applied retroactively—because the Justice Department’s own attorneys want to protect certain mandatory-minimum sentences.

Now we’ll see how the politics play out. Ending sentencing disparities and reducing the prison population have received bipartisan support, with Republican Sen. Rand Paul of Kentucky being the most prominent advocate within his party.

But this is an election year, and Obama’s decision to use his executive authority invites attacks from congressional Republicans. This time, though, they can’t derail what may be part of the most targeted effort yet by this president to address a problem that disparately harms African Americans.

Corey Dade, an award-winning journalist based in Washington, D.C., writes The Take and is a contributing editor at The Root. He appears on MSNBC and CNN and contributes to NPR. He is a former NPR correspondent and political reporter at the Wall Street Journal. Give him your “take” on Twitter.