September 19, 2011

September 19, 2011 | Commentary on Legal Issues, Rule of Law

The University of Texas and Racial Preferences

Abigail Fisher’s application to the University of Texas at Austin in 2008 was rejected. Had she been black or Hispanic, she almost certainly would have been accepted — and so she and another student in a similar circumstance filed a lawsuit. So far, the federal courts have ruled against them, reinforcing the odious notion that colleges can discriminate on the basis of race — as long as the right people are being discriminated against.

But that may soon change.

Fischer’s lawyers filed a petition with the Supreme Court on September 15 asking the Court to review Fisher v. University of Texas. If the case is accepted, the Court could clarify — and, more important, limit — how a university may consider an applicant’s skin color and ethnicity for admissions. Since hundreds of colleges use “preferences” (the politically correct term for discrimination), clarification would be a welcome outcome.

The jurisprudence of such racial discrimination has been controversial since 1978, when Regents of the University of California v. Bakke was decided by a fractured Supreme Court. In Bakke, the Court disallowed the use of racial quotas in the admissions process at the Davis Medical School, but Justice Lewis Powell left the door open to “a properly tailored affirmative action program designed to promote diversity.” For years, legal scholars debated what a “properly tailored” affirmative-action program entailed.

It wasn’t until 2003 that the high court revisited the question in a pair of cases from the University of Michigan (Grutter v. Bollinger and Gratz v. Bollinger) challenging the institution’s law-school- and undergraduate-admissions policies.

The Grutter opinion held that a racially diverse student body was so beneficial to the educational experience that there was a “compelling state interest” in lowering the admissions bar for some racial groups, and raising it for others. Still, the justices underscored that this regrettable opinion was not a blanket endorsement of the use of race in admissions. Any consideration of race must be carefully and narrowly crafted and executed.

One of the central tenets of Grutter requires that, before putting a thumb on the race scales, a school must pursue a “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” Unfortunately, in the real world, few if any competitive universities (dominated by liberal administrators) have ever implemented race-neutral programs to replace racial preferences. But Texas schools are unique, and that is why the higher-education community is watching the Fisher case so closely.

In 1996, the Fifth Circuit Court of Appeals outlawed the use of race in admissions by any Texas university. In response, the state legislature passed a law that allowed any student in the top 10 percent of his high-school class to attend any public college in the state.

This boosted minority enrollment (and enrollment from rural areas) at the University of Texas–Austin (UT). In fact, enrollment of African Americans and Hispanics surged, surpassing minority enrollment levels achieved with race-based admissions. Tellingly, Larry Faulkner, the university’s president at the time, wrote that “the Top 10 Percent Law has enabled us to diversify enrollment at UT Austin with talented students who succeed.” Faulkner added that by 1999, enrollment levels for blacks and Hispanics had returned to the levels before the Fifth Circuit decision; further, minority students were earning higher grade-point averages and had better retention rates.

Yet on the very day that Grutter was decided, President Faulkner announced that UT would reintroduce race-based admissions. UT has defended its decision by arguing that while minority enrollment was up because of the Top 10 Percent Plan, it still does not mirror the overall demographics of Texas. Furthermore, UT asserts that individual classrooms still lack a “critical mass” of blacks and Hispanics, so reintroducing discriminatory preferences is justified.

Both arguments were attacked by Chief Judge Edith H. Jones, who wrote a dissent on behalf of seven out of 16 of her fellow judges. The “U.S. Constitution abhors racial preferences,” she said, adding that allowing UT to seek classroom diversity through racial preferences was “pernicious.” She questioned whether UT should be allowed to “add minorities until a ‘critical mass’ chooses” particular subjects such as nuclear physics or applied math. This was opening “the door to effective quotas in undergraduate majors” based on race.

Fisher v. University of Texas does not seek to overturn Grutter. It asks only that UT properly apply the Supreme Court’s principles that require using race-neutral alternatives first where they have been shown to work in achieving the state’s claimed interest in diversity. The plaintiffs acknowledge that a university, in certain limited ways, may use race as one factor in its admissions process under the Grutter rationale (however misguided it is). But that does not give UT or the hundreds of schools that use such discriminatory admissions policies a racial carte blanche. If the Court agrees, it would have to adopt another convoluted standard, but at least it would be better than Grutter.

If the Supreme Court takes the case, the defenders of affirmative action, including the Obama administration, will decry the case as an attack on diversity in higher education. But this will be wrong. Fisher gives the justices an opportunity to reinforce one of the bedrock principles of equal protection: Every race-conscious government decision bears dangers to our nation and must be weighed exactingly and suspiciously.

Opponents of discrimination have good reason to hope that the Court could go even farther than the plaintiffs have requested and overturn Grutter, putting an end to state-sanctioned discrimination once and for all. Not least is the shift of personnel on the Court. Justice Sandra Day O’Connor, who authored this decision, was replaced by Justice Samuel Alito, whose jurisprudence favors race neutrality. There is nearly a decade of proof that Grutter is a failure at limiting discrimination. And then there’s Chief Justice John Roberts’s elegant statement in a 2007 school-integration case (agreed to by a majority of the Court) that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Abigail Fisher enrolled at another university and will graduate next year with an exemplary academic record. It would be a shame, however, if thousands of future applicants to UT were discriminated against on the basis of their skin color under the same circumstances.

Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in National Review Online