Simon is an attorney and an adjunct professor of law.

Any day now, the U.S. Supreme Court will decide the University of Michigan affirmative action cases. Predicting Supreme Court decisions is always hazardous, but the experts expect a close and narrow decision.

Thus, five justices may approve affirmative action, but with severe restrictions. Or a different five may disapprove the Michigan plans but hint that a different plan would pass constitutional muster. In either case, the warring factions will continue to dispute whether giving people with black or brown skin an advantage in admission is constitutionally permissible.

Whatever the result in the Michigan cases, there is a more defensible way to accomplish the same goals, a method which would make schools diverse, make admissions fairer for those from disadvantaged families or schools, and at the same time, avoid the most difficult constitutional questions presented by racial preferences. This superior (or at least constitutionally less hazardous) method is "affirmative action" for those who are economically or socially disadvantaged, without regard to race.

To understand why socioeconomic affirmative action is superior, let's review the goals of affirmative action and the objections thereto.

What the University of Michigan wants is a university which is not overwhelmingly white, and at the same time, a system which is fair to those who, because of poverty or other disadvantages, have been raised in homes or attended schools which did not prepare them to compete equally for places at highly competitive universities.

There is little doubt that a student attending a Detroit inner-city school is at a disadvantage in college admissions compared to a student from a wealthy suburb – more advanced high school curriculum, money to pay for SAT prep courses, guidance on his college applications from private counselors, and parenting from two educated adults will provide a big edge. Unfortunately, the solution chosen by Michigan and many other schools creates its own difficult issues.

Simply put, racial preferences – bonus points or other advantages simply for being black or brown – rub many Americans the wrong way. They create discontent, sometimes leading to legislation or referenda like California's Proposition 209.

They are also terribly imprecise. A poor white student from the inner city (or Appalachia) gets no break even though he may be comparably disadvantaged to an African-American inner-city student. A suburban black young woman whose parents are professionals who have chosen to send her to prep school gets the same racial preference as the poorest ghetto student. Is this fair?

And most significantly, racial preferences generate difficult lawsuits. We have a long constitutional history of striking down racial discrimination as inherently "suspect," and a long civil rights history of striving for a "color-blind" society. When we implement racial preferences, we run the risk that courts will not exempt this supposedly benign discrimination from those decades-old rules and principles, and we invite long and divisive litigation which clouds the validity of such preferences.

Instead of focusing on better ways of educating all our students, or even upon methods of admitting the best minority or disadvantaged candidates, our educators are instead devoting untold hours to devising systems to meet (or evade) vague 5-4 Supreme Court decisions on affirmative action. Is it a quota? A goal? Simply a preference? This is a highly unproductive use of educators' time.

By contrast, if all economically disadvantaged students were given a preference (and the schools already require economic data for financial aid purposes) the fairness issues would be addressed directly, while the diversity issues would be addressed effectively, albeit indirectly. At the same time, the entering class will get an infusion of economically disadvantaged students.

Given the economic realities in our country, this infusion will include a significant number of minorities, thus providing racial diversity without racial preferences. Moreover, the underprivileged white students will increase diversity as well. Don't you think that a poor white kid from inner-city Baltimore will provide as much diversity to a freshman dorm at Harvard as a black prep school graduate?

Will as many black or brown students be admitted this way? A recent study by the Century Foundation suggests only a modest loss of racial diversity by a shift from racial preference (12 percent black and brown) to economic preference (10 percent black and brown), but with a very substantial increase in students from poorer families. One must ask proponents of racial diversity, is avoiding this modest loss of racial diversity worth the greater risk of courts prohibiting racial preferences entirely (as occurred at the University of Texas)?

And what of the so-called "Texas Plan," which admits the top 10 percent of every public high school to the state university? This blunt instrument is far inferior to preferences for economically disadvantaged students. It does nothing for 90 percent of our students; it ignores promising economically disadvantaged students performing well (but below the top 10 percent) at excellent suburban or private high schools; and it cannot address admissions to private colleges or to graduate or professional schools.

It also invites gaming of the system, such as taking easy courses to stay in the top 10 percent, or even attending an inferior high school (and excelling there) to ensure admission to the state university. No one can seriously suggest that this plan creates fairness for most students, and it certainly cannot foster diversity for most universities.

In sum, when considering both feasibility and efficacy, admissions preference to the economically disadvantaged is the best system available. It is fairer than racial preferences, comparably effective in obtaining racial diversity, far more effective in obtaining economic diversity, and most important, much safer from judicial attack.

Affirmative action has been battling for legitimacy for years because it smacks of racial discrimination. Preferences for the disadvantaged may be attacked by some, but without a racial issue to latch onto, their arguments will be without significant legal support. After all, scholarships are given to those who are poor; why not admissions preference?

So when the Supreme Court decides the Michigan cases, rather than asking, "what is the future of racial preferences after the Supreme Court's narrow and confusing decision," let's ask instead, "why don't we try using economic preferences and stop fighting?" If it doesn't work, and cannot be fine-tuned to work, there will be time enough (and more compelling justification) to press for more controversial measures.