A new decision doubles down on decades worth of dubious precedent. In a 4-3 decision, the Supreme Court has upheld the use of race in admissions at the University of Texas-Austin. Swing justice Anthony Kennedy unexpectedly joined the liberals and wrote the majority opinion in the case, Fisher v. University of Texas; with Antonin Scalias death and Elena Kagans recusal, there were only seven votes.
The majority opinion is incoherent, to the point of being downright comical in places. But it is weirdly of a piece with the Supreme Courts previous decisions on this topicand a good opportunity to look back at the road that got us here.
The case revolves around UTs complicated admissions system. Most students are admitted through the Top Ten Percent Plan, which allows students graduating at the top of their high-school class to attend any state-funded university they want. (Thanks to a 2009 reform, the Austin campus is now allowed to cap automatic admissions at 75 percent.) The remaining slots are allocated according to scores on an Academic Index and a Personal Achievement Index. The latter takes race into account.
In 2008, Abigail Fisher was denied entry and sued. Fisher alleged that the system violates the 14th Amendments guarantee of equal protection of the laws. Not only does it discriminate on the basis of race, but it does so on top of two other measures that do a good job of promoting diversity by themselves, the Top Ten Percent Plan and the non-racial elements of the Personal Achievement Index (such as socioeconomic status).
Owing to UTs unique circumstances, Fisher was able to make this case quite forcefully. For a period around the turn of the century, an appeals-court decision had forced UT to use race-blind admissions. The state passed the Top Ten Percent Plan in response, and in 2000, the university proudly announced that enrollment levels for African American and Hispanic freshmen have returned to their previous level. But when the Supreme Court okayed the use of race in 2003, the university injected it back into the system, seemingly just because it could. (Nonetheless, Fisher was perhaps not the ideal plaintiff: Even if she hadnt been white, she probably wouldnt have gotten in.)
Her case made it to the Supreme Court in 2013, but it was anticlimactically sent back to a lower court with some instructions. Last Thursday, the nations highest court finally put the litigation out of its misery.
The upshot is that the UT system is constitutionalbut any legislator, university administrator, or lower-court judge looking for broader guidance as to whats legal and whats not will be sorely disappointed. The opinion does more to confuse than it does to clarify the rules, building on the tensions and contradictions of previous decisions.
For example, the Court saddles the university with a continuing obligation to
periodically reassess[] the admission programs constitutionality, and efficacy, in light of the schools experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests. Yet those compelling interests are not in enrolling a certain number of minority students, but
in obtaining the educational benefits that flow from student body diversity.
So universities must track their student body diversity using data to make sure they dont emphasize race any more than needed to achieve their goals, but they cant have a certain number of minority students as a goal.
And to confuse matters even further, schools affirmative-action goals must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. In Kennedys estimation, the University of Texas achieved this with the concrete and precise goals of ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizenry. Only a minority of Supreme Court justices, given voice in a lengthy dissent by Samuel Alito, thought something seemed off about this. (For instance, how will a court ever be able to determine whether stereotypes have been adequately destroyed?)
You cant make this stuff up. Unless, of course, you build up to it slowly over the course of several decades, the way the Supreme Court did. Its first major affirmative-action case, Bakke, dates to 1978, and it was full of the same type of odd reasoning.
The Court took a very particular approach to equal protection, subjecting the use of race in admissions to strict scrutinya legal term meaning it must be narrowly tailored to serve a compelling state interest. This case is where the ban on certain numbersoutright quotascame from. It also held that schools couldnt try to remedy the broad historical disadvantages that certain racial groups have faced, which is probably the number-one argument that affirmative-action supporters employ when theyre not in court. What schools could do is use preferences to promote the supposed educational benefits of diversity.
Subsequent casesnotably two decided in 2003were variations on this theme. Grutter revolved around the question of whether one schools policy, which involved a nebulous plus factor for race designed to enroll a critical mass of minorities, was in reality a veiled quota system. (The Court said it was okay.) Gratz involved a system that blatantly gave an extra 20 pointson a 150-point scaleto applicants from underrepresented groups. (This was not okay.)
As Ramesh Ponnuru has pointed out, there was another option for the courts. The 14th Amendment didnt even need to come into playindeed it shouldnt have, because it was not originally intended or understood to ban all government distinctions based on race. Some legal scholars would even do Ponnuru one better, arguing that originally, the 14th Amendment didnt forbid outright school segregation, much less affirmative action. (While that may sound like the rant of a deranged racist, this point is often part of liberals case for a living Constitution.)
Courts should have looked not to the Constitution but to the Civil Rights Act of 1964, which states unequivocally: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
If the Supreme Court had invalidated affirmative action on statutory grounds in 1978, Congress would have been forced to have an actual debate about the statutespecifically, about whether it should ban affirmative action along with other forms of racial discrimination. But in Bakke, the Supreme Court simply shunted the Civil Rights Act of 1964 aside, claiming the language did nothing but implement the 14th Amendment and therefore need not be considered separately.
Today, we have an odd kind of supervised federalism, where states and schools are free to use affirmative action, but where courts periodically swoop down and invalidate policies, doubling down on a vague, decades-old precedent that never made sense to begin with and certainly doesnt reflect the laws Americans actually voted for.
Thats how we end up with a decision like Fisherwhere justices fight over how much they should defer to universities opaque, shifting judgments of how much diversity they need; where schools are allowed to pursue a critical mass of minorities but not a certain number of them; and where institutions are instructed to go through the pretense of repeatedly reassessing the racial preferences they have used for years and have no intention whatsoever of discarding.
Robert VerBruggen is managing editor of The American Conservative.