About a year ago, the U.S. Supreme Court overturned a court of appeals decision that had upheld the University of Texas’s use of racial and ethnic admissions preferences, ruling that the court of appeals had not been strict enough in its scrutiny of the school’s discrimination against the plaintiff, Abigail Fisher. Last week a divided court of appeals panel on remand has again upheld the university’s discriminatory admissions policy (here are the judges’ opinions).
It’s likely that this case is now headed back to the Supreme Court. The good news is that the court of appeals ruled on the merits — it did not deny Ms. Fisher’s standing or send the case back to the trial court — and that there is a strong dissent. For most of the balance of this week’s email, I’d like to offer a few more thoughts on the panel’s decision.
By the way, the Fisher case is one in which the Center for Equal Opportunity has been involved for a long time, filing two briefs in the Supreme Court and two in the court of appeals — and even filing an administrative complaint before the lawsuit was brought. And we plan to join and help write a brief appealing from last week’s panel decision, too.
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First, the majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that accrue from having a critical mass of this or that racial group. Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.” And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s recent opinion for the Supreme Court demanded in this case – that, specifically, there are no race-neutral ways of achieving the relevant educational benefits – when these terms are undefined? As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger — the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.
Second, the reason that racial preferences are being used in addition to Texas’s “Top Ten Percent Plan” (or “TTPP,” which grants automatic admissions to anyone in the top ten percent of the graduating class of any Texas public high school) is that the TTPP admits the “wrong kind” of blacks/Latinos — that is, not to put too fine a point on it, they are lower class instead of upper class. But surely some blacks/Latinos of the “right kind” are admitted under the TTPP, and surely some of the blacks/Latinos admitted under holistic review are of the “wrong kind.” Yet the University seems confident that it can predict that the quality of the random interracial conversations occurring on campus will be improved by drawing more from this pool of blacks/Latinos versus that pool of blacks/Latinos — so confident, in fact, that it is willing to overlay racial preferences on top of the TTPP.
And this takes us back to my first point: Precisely what “educational benefits” from these conversations are heightened not only by having different amounts of melanin, but different incomes within a melanin group?
It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds. But that is precisely why all stereotyping, preference, and discrimination based on race should be rejected.
To elaborate just a bit more: Will there be some marginal increase in “educational benefits” if race is considered among the non-TTPP applicants? Not on this record. But even if there were, those marginal increased benefits have not — and cannot — be shown to outweigh the costs of inserting race into the admissions mix. CEO supporters may recall by now my litany of costs (see my discussion in the Chronicle of Higher Education, here); I think it is important that we force the courts somehow to consider them (especially, for example, the well-documented problem of setting up for failure the black and Latino students who are mismatched at schools that admit them with lower qualifications than the rest of the student body).
Thus, something is wrong with the courts’ framework when, after all the attention that the “mismatch” issue has drawn, neither the majority opinion nor the dissent mentions it. Likewise, the courts should require schools to explain with some precision what the educational benefits in the particular context at issue; it cannot be the case that those benefits can be taken as a given for the University of Texas’s engineering school even if they have been established for the University of Michigan’s law school. The more we can force schools to document the purported benefits of these random interracial conversations, the better.
One more, not unrelated point: The race-neutral alternatives that Justice Kennedy demanded to be considered ought to be to the end of achieving some level of educational benefits, not to increasing the number of “underrepresented” minority students per se.
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By the way, there has just been published an outstanding article by Peter Schuck on the topic of racial preferences in university admissions. It’s in the current issue of National Affairs, and it’s really, really good.
Here’s the powerful conclusion:
The public opposition to race-based affirmative-action programs on campus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opacity, dissimulation, and even evasion by its administrators and advocates.
And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.
We are far from putting America’s history of racial intolerance and injustice behind us, but affirmative action fails to rectify these evils and instead harms both our students and our society as a whole.
