Wednesday's oral argument in the Supreme Court over the constitutionality of the University of Texas' affirmative action policy replowed ground that the justices explored in 2012 when they first heard the case of Abigail Fisher, a disappointed white applicant. As if that isn't enough déjà vu, two justices suggested that the court might want to punt on the case again by sending it back to a lower court.
Such a "do-over," as Justice Antonin Scalia called it, would needlessly prolong the legal uncertainty around affirmative action. But the main problem with putting the university's program on trial is that the legal standards established by the Supreme Court for assessing racial-preference programs are convoluted and contradictory.
When universities began to diversify their student bodies in the 1970s — to the point of admitting some minority students with lower-than-usual grades and test scores — they had several objectives. One was to help society overcome the lingering legacy of racial discrimination, which had condemned many black students to inferior schools that provided poor preparation for college. Another goal, especially for highly selective colleges and professional schools, was to assist in the integration of a leadership class that drew disproportionately from graduates of those institutions.
Finally, racial-preference programs served the goal of assembling a diverse student body, one in which students from big cities would interact with those from rural areas, in which musicians would attend classes with athletes and, yes, in which students of different racial backgrounds would learn from one another.
Unfortunately, the Supreme Court's seminal ruling on racial preferences — its 1978 decision in Regents of the University of California vs. Bakke — recognized only the last objective as justifying the use of race in admissions. Justice Lewis Powell wrote that race could be one "plus" factor among others when a university sought to achieve "educational diversity." A 2003 decision involving the University of Michigan Law School reaffirmed Powell's opinion.
In effect, those decisions have forced backers of racial preferences for nearly 40 years to justify their position only on diversity grounds. The idea that schools should take race into account to benefit long-excluded minorities is considered by the court to be just as suspect under the Constitution as race-conscious policies that favor the white majority.
Against this backdrop, Gregory Garre, the lawyer for the University of Texas, struggled to defend its policy of admitting a minority of freshmen through a "holistic" process in which a student's race can be considered along with other factors including extracurricular activities, socioeconomic background and "hardships overcome."
On the one hand, Garre suggested that race was only one of "numerous factors" considered in holistic review, making it sound as if it wasn't all that influential. But at another point he stressed that when the university added "race" to the factors considered, the admission of black and Latinos "increased markedly." The Supreme Court deserves the blame for forcing defenders of racial preferences into such contortions.
What's more, having been forced by the court to argue in favor of racial preferences on diversity grounds, Garre was then challenged by Chief Justice John Roberts: "What unique perspective does a minority student bring to a physics class?" But it was the court itself that encouraged Garre to make the diversity argument in the first place.
Really, the problem facing defenders of affirmative action is that they've been barred from employing the most obvious and persuasive argument: that racial preferences are necessary to undo past wrongs and to bring marginalized minority groups into the mainstream of American life.
On Wednesday, Justices Anthony Kennedy and Stephen Breyer flirted with the idea of sending the case back to a federal district court to develop evidence on that issue. But, given the Supreme Court's confusing standards, it's unlikely that decisive "facts" would emerge.
Enough already. The court's affirmative-action jurisprudence is a mess. It would do itself and American higher education a favor by resolving this case in favor of the university and then adopting a policy of benign neglect where this subject is concerned — until it is willing to announce a new standard that acknowledged that there is more than one good reason for universities to recognize the reality of race in America.