Racial Preferences on the Docket

The Institution of Racism

by: James Braid

Oral arguments in the Supreme Court case Fisher vs. University of Texas have just finished.  If Abigail Fisheris successful in her suit, racial preferences—also known as affirmative action—in college admissions will likely be struck down nationwide.  The mainstream media, along with the semiliterate staff at the DTH, have performed their usual heroically incompetent job reporting on the case.  I thought I’d take the opportunity to correct some of those distortions here.  Be advised, this article delves down into the weeds of Constitutional law.  If that’s not your bag, skip it.

UT has two programs intended to bolster minority applicants’ chances of admission.  One is the Top 10 Percent program, which automatically grants admission to any high school student in the top ten percent of his graduating class.  Because Texas high schools are informally racially segregated (for the most part,) this policy increases minority enrollment by guaranteeing admission to students from less competitive minority-dominated high schools.  This program, ostensibly race-neutral, is not being challenged.

Unhappy with the results of Top 10, however, UT decided to go further and institute a second program.  Minority students at affluent high schools were struggling to get in, so economically privileged blacks and Hispanics were given a significant boost during the admissions process.  This is the program Fisher challenged as unconstitutional.

The first question at stake in oral arguments was the question of standing.  In the United States, the plaintiff must show that the law or policy in question will cause him immediate harm.  (As opposed to countries like Germany, where the Supreme Court itself can bring their own suit against a statute they believe violates the Basic Law.)  Fisher’s lawyer, Bert Rein, argued convincingly that the Constitutional injury, ie the denial of equal protection under the Fourteenth Amendment, was sufficient to give his client standing to sue.  Sotomayor and Ginsburg were both skeptical of that claim, citing the precedent of Texas vs. Lesage, which held that the mere existence of a race-based criterion for the purpose of disbursing government benefits (in this case, admission to a public college) was not, ipso facto, a violation of the 14th Amendment.  Sotomayor and Ginsburg seemingly ignored other holdings of the Fifth circuit in this case, notably that an “applicant who was rejected at a stage of the review process that was race conscious…has suffered an implied injury”– the inability to compete on an equal footing.”  Scalia, that conservative stalwart, was quick to remind the two liberal justices of this fact.

Rein continued, and arrived at the central issue of the case: whether or not to overturn Grutter vs. Bollinger, , which was decided in 2003.  Grutter held that systems of racial preferences must pass through a constitutional test called “strict scrutiny.”  Strict scrutiny requires a policy to fulfill three requirements: one, the policy must be narrowly tailored to achieve a specific goal; two, the policy must be in the compelling interest of the state; and three, the organization must be able to demonstrate that the goal in question (racial diversity on campus) could be achieved no other way. Grutter also held that using race as a “holistic factor,” in evaluating applications satisfied strict scrutiny.  Colleges and universities nationwide have taken that to mean race may be THE determining factor in admissions. Rein argued that “the use of race was not narrowly focused, had no specific goal, and was used as a first resort rather than a final alternative.”  He was not, therefore, arguing that Grutter had to be overturned.  He was arguing that the UT program failed strict scrutiny.  This is an important distinction, as it is much more difficult to get the Court to overturn a precedent than make one.

The goal laid out in Grutter that made it constitutionally acceptable for universities to consider race is the goal of “critical mass.” A university with a critical mass of racial diversity has enough members of a particular minority so that these students neither feel isolated nor feel like spokespeople for their ethnic group.  There was a lengthy back and forth over this topic in oral arguments.  Roberts wanted Garre, the lawyer for UT, to say a number, a percentage of the student body that would indicate that a sufficiency of minorities was present on UT’s campus.  Garre avoided doing so.  Quotas are illegal, and a predetermined percentage of minority students would act in the same manner.

I’ve tried to avoid quoting at length from the oral arguments, but this exchange is perhaps the most crucial section of the entire argument.  It’s why I believe affirmative action may soon be a thing of the past:

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before.

The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s faulty because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.

Now, that’s — that’s your argument? If you have an applicant with two parents, one of them is a partner in your law firm in Texas, another again a corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­parents both have graduate degrees.

They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

MR. GARRE: No, Your Honor. And let me -­let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you’re saying is that what counts is race above all?

Garre didn’t give him a straight answer, but I will.  Yes, under the current policy race counts above all.  You can’t be too sure what’s going to happen when the final votes are counted, but that question, that last question by the swing vote Justice Anthony Kennedy, radiates skepticism.  As a person who believes that prior bad acts don’t justify today’s bad policy, it’s heartening to read.


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