Opinion: Supreme Court should give this affirmative action case a pass

Last week a federal appeals court ruled — again — that the University of Texas at Austin didn’t violate the Constitution when it engaged in racial preferences in its admissions policies.

This was Round 2 for Abigail Noel Fisher vs. the University of Texas at Austin. Fisher, a white woman who was passed over for admission at the flagship campus, took a previous decision against her all the way to the Supreme Court, which last year bounced the case back to the U.S. 5th Circuit Court of Appeals. In a 7-1 decision, the justices asked the appeals court to look really, really hard at the Texas plan (the legal jargon is “strict scrutiny”) before concluding that “no workable race-neutral alternatives would produce the educational benefits of the diversity.”

Two judges on a three-judge panel said they did that, and Fisher still loses. Fisher, who graduated from Louisiana State University in 2012, said she wasn’t giving up and would file another appeal to the Supreme Court if necessary.

If she does, I hope the court gives the case a pass, not because the appeals court’s opinion is particularly persuasive but because the Supreme Court has made such a mess out of the law in this area that it’s almost impossible for a university to meet its standards.

The problem started in 1978, when the Supreme Court decided the case of Allan Bakke, a disappointed white applicant to the UC Davis Medical School. The court ruled for Bakke on the grounds that the school unconstitutionally had set aide a number of places for minority applicants.

But a majority of the court held that other, less rigid forms of racial preference would pass constitutional muster. In the decisive opinion, Justice Lewis Powell said universities could consider race to achieve the educational benefits of diversity. Powell turned a common-sense insight — that students from different backgrounds educate one another — into a constitutional principle.

In a 2003 decision upholding racial preferences at the University of Michigan Law School, the court affirmed Powell’s approach and said that, in seeking diversity, a school could use racial preferences to create “a critical mass of underrepresented minority students.” But it still couldn’t set aside a set number of places for minorities.

Someone once joked that a particular policy “works in practice but not in theory.” That’s a fair description of how racial preferences work at elite universities, public and private. The theory that a university can use racial preferences to reach a “critical mass” of minority students without having a particular number of spots in mind is logically absurd. But the existence of that doctrine has allowed elite universities to do what they really want to do (and for good reasons): increase the number of minorities — particularly African Americans — whose relatively poor paper credentials reflect the effects of historic discrimination.

When the debate over racial preferences in college admissions began in the late 1960s, that was the preferred and persuasive justification for what later became known as affirmative action. It’s also the rationale most consonant with the 14th Amendment, which was added to the Constitution to protect the rights of freed slaves.

In his opinion in the Bakke case, Justice Thurgood Marshall wrote: “For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

Alas, the road Marshall would have followed is not the one taken by the court. Instead, it has persisted in holding that the only justification for racial preferences is educational diversity — but racial preferences are still a last resort.

Meanwhile, the diversity rationale has become increasingly complex and convoluted. At the University of Texas at Austin, a good number of minority students were admitted under Texas’ so-called Top 10 plan, which granted a place in the freshman class to students who finished in the top 10% of their high school classes. This was a too-clever-by-half “race-neutral” way to ensure minority enrollment because so many public schools in the state are segregated.

But that wasn’t enough for the University of Texas at Austin. It craved minority students from affluent integrated districts who scored better in tests and had better grades than the top students from mostly minority high schools, but who didn’t finish in the top 10% of their own high school classes. So, after the Supreme Court ruled in 2003 that race could still be a factor in admissions, the university used a “holistic” policy — one that included consideration of race — to fill the places left over after students were accepted under the Top 10 plan.

The university defended this policy as a way to achieve “diversity within diversity.” The idea is that the non-Top 10 minority could serve as stereotype-busters, demonstrating to white classmates that not all minorities are poor or “urban.” During oral arguments in the Supreme Court, U.S. Solicitor General Donald Verrilli, siding with the University of Texas, offered the example of “the African American fencer”!

We’ve come a long way from the original impulse for affirmative action, which, as Marshall put it, was to “remedy the effects of that legacy of discrimination.” That remains the best justification for racial preferences in admissions at highly competitive state universities. (The second-best justification is that, for good or ill, a relative handful of top-tier universities disproportionately supply America with its leadership class, so it’s important that those institutions be integrated.)

It’s unlikely that a majority of the Supreme Court is willing to turn back the clock and endorse Marshall’s approach. So, if the court did review the University of Texas case again, the result probably would be more tortured debate among the justices about whether the university’s racial preference program is “narrowly tailored” to achieve the “educational benefits of diversity.” And if that debate led to a decision overturning the Texas plan, lawyers at other universities would quickly set about devising new stratagems, and then those plans would be challenged in court.

Please, Your Honors, don’t go there.

Follow Michael McGough on Twitter @MichaelMcGough3