The Supreme Court just kicked the latest affirmative action case (Fisher v. University of Texas), back down to an appeals court,  effectively avoiding the big issues of race and class in America – at least for now. Abigail Fisher claimed that the University of Texas at Austin violated her rights by considering race in its admissions process. Fisher is a white woman who was not admitted to the University in 2008.
The Supreme Court claims that the U.S. Court of Appeals for the Fifth Circuit did not subject the Fisher case to the appropriate standards, in particular: Are the means for ensuring campus diversity narrowly tailored to that goal? And can the university achieve diversity via mechanisms that do not require racial classifications?
Despite the decision to bounce the case back, interesting undertones can be gleaned from Justice Anthony Kennedy’s 7-1 majority opinion, and particularly the two concurring statements from Justices Clarence Thomas and Antonin Scalia. Thomas and Scalia took the opportunity to add their distaste for the entire idea that universities are entitled to use racial considerations in composing their communities. Justice Thomas asserted that "a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."
The rejection of affirmative action logic, found in Thomas and Scalia, was foreshadowed by Justice Roberts’s earlier slogan, from a 2007 decision, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of
race." Foes of affirmative action, including some conservative members of the court, seem convinced that we’re now living in a post-racial society, and the policy ameliorations of the past have become the reverse discriminations of today.
One of Ronald Dworkin’s last articles  (before his death in February) decried the conservative rejection of affirmative action, predicting that the court would probably overturn the 2003 Grutter v. Bollinger decision, which allowed for race considerations in admissions. That may still happen, but not yet.
Dworkin suggested that affirmative action is no more discriminatory than other preferential forms of college admission, including preference for good athletes where universities have strong athletic programs. Institutions are entitled to have reasonable preferences -- higher scoring on standardized tests, for example, puts lower-scoring individuals at a disadvantage. As Dworkin put it, "the Constitution does not prevent regulative legislation that gives advantage to some over
others – to optometrists over oculists, for example – when the legislation serves a ‘rational’ purpose that reflects no prejudice or favoritism." But this last clause was precisely the sticking point, since Abigail Fisher’s case asserted that race consideration in Texas admissions violated her constitutional rights with prejudiced policy. Dworkin found it absurd that the university could be interpreted as prejudiced against white students, since it is overwhelmingly white. Dworkin also dismissed any white resentment (for being passed over), suggesting that the wider moral perspective revealed rational preferences in the affirmative action policy, not just favoritism. He voiced the Left’s position that the higher social good of liberal tolerance is the rational grounding that renders resentments unjustified.
This underlying rational aspect of race consideration is articulated in Sandra Day O’Connor’s 2003 Grutter v. Bollinger  endorsement of the Court’s earlier claim that student body diversity is a compelling state interest and justifies the use of race in university admissions. The moral reasoning is that greater campus diversity breaks stereotypes and xenophobia, and students will emerge from these experiences with greater tolerance and less prejudice.
Three important objections can be raised against affirmative action logic, and last month’s Court ruling expresses some of these critiques in its decision. First, this specific demarcation of rational preferential treatment from regular garden-variety discrimination seems to beg the question. The general point – that rational preferences can be positive and defensible – is not the issue. But this specific designation of good and bad preference is the aspect that needs greater warrant.
Using this logic, for example, Dworkin argued that it is not enough to get black students on campus in Texas – a task easily accomplished by an existing law that takes the top 10 percent of Texas high school students and therefore draws smart, poor, black students from geographically black high schools. Judge Alito suggested, while hearing the case, that this 10 percent rule sufficiently ensures the sought-after student diversity. But supporters of affirmative action, like Dworkin, argued that this would not be the right sort of diversity, because it would feed white stereotypes that blacks are poor. Supporters of affirmative action in Texas argued that the university should be encouraged to cherry-pick black students from middle- and upper-class backgrounds in order to break campus stereotypes.
Such fine-grained optimization of diversity is a multiple-edged sword for the state to legislate. For one thing, it’s hard to see why this cherry-picking isn’t already redundant to the existing mechanism of merit admissions, because if a smart black student is from a middle-class family then she already has many of the supportive ingredients to be selected by the institution like every other middle-class student. For this reason, a racial preference may fail the legal strict scrutiny requirement that it be the "least restrictive means" for achieving its goal.
Moreover, the very criterion of "breaking stereotypes" (as rational justification) is a sticky wicket, because it radically opens the floodgates of equally reasonable complaints. Latinos in every economic class will need to be cherry-picked, as will Asians and every other group. If there are not enough gays and lesbians on campus to defuse homophobia, institutions will need to protect slots for gays and lesbians in every economic and racial category. Transgender students will not just need representation, but representation from different economic backgrounds. And Asians who are bad at math and Jews who prefer football to studying will need special recruitment, in order to break down those pernicious widespread
stereotypes on campus. In short, "breaking stereotypes" is an over-inclusive criterion, and it seems to fail the strict scrutiny expectation that a law or policy be “narrowly tailored” to achieve its goal or interest.
Secondly, Dworkin and other supporters think it’s obvious that the university is not guilty of black favoritism, because the institution remains so demographically white. But this ignores the possibility that lefty academics (otherwise known as academics) could be prejudicially biased in favor of minority students, even when they are not themselves minorities. Reverse discrimination can be ideologically motivated. I take it this is a major critique of academe, from the Right – namely, the academy’s general obsession with the subaltern.
White guilt is stronger in the academy than in any other arena of American culture, so it’s not impossible that reverse discrimination has systemic reach in this narrow domain. One way to assess this possibility is to measure the number
of black applicants against the number of blacks admitted. Similar numbers there might be suggestive of institutional reverse discrimination, and this was essentially Justice Rehnnquist’s claim in his dissent for Grutter v. Bollinger. Moreover, Rehnquist argued, this bias was more troubling in the University of Michigan Law School case (Grutter), because the overall number of Latinos admitted from 1995-2000 was only half that of African Americans. The criterion of diversity, therefore, is not producing anything like a representational spread of U.S. demographics. Of course, none of this may indicate favoritism per se, but just a broken haphazard system that’s too unorganized to even have an agenda.
That’s not exactly good news either.
Thirdly, we have come a long way from the original purpose of affirmative action, if the conversion of on-campus white psyches is the new rational justification. President Johnson’s policy started as a legitimate leg-up for black people – a boost for opportunity. But the newer logic holds that affirmative action will better-ensure that white people will think better thoughts about people of color. This moral argument appears to underpin the Supreme Court’s logic in Grutter v. Bollinger, where Justice O’Connor argued that race preference policies would be a necessary evil for only another 15 years (25 years from the original opinion).
When President Johnson first instituted affirmative action, one of the underlying purposes was reparation to the descendants of former slaves, many of whom were victims of Jim Crow bigotry. African Americans who felt the sting of racism directly were helped by the policy. The goal of increased diversity, in schools and the workplace, was intimately connected to this reparation function of affirmative action, but that is no longer the case. In today’s America, many of the people who benefit from diversity policies are not disadvantaged African Americans, but Latinos, Indians, Africans, Vietnamese, Iranians, Pakistanis, Chinese, Koreans, and so on. While many of these groups have faced terrible hardships, they have not been enslaved with the approval of the United States.
We’re not living in a post-racial age, in the sense that we all see past skin color, speech accents and cultural differences. But we are living in a post black-and-white era of discrimination, in the sense that we now have many additional kinds of discrimination (brought on by melting pot trends). Prejudice is not as uniform as it used to be, and now we have micro-prejudices that cannot be legislated away; Puerto Rican Americans stereotype Mexican Americans, who turn around and stereotype African Americans, who in turn stereotype Korean Americans, who then stereotype Japanese Americans, who stereotype Chinese Americans, who tend to stereotype Pakistani Americans, who stereotype Indian Americans, and so on.
Just after the civil rights era, huge immigration spikes started for Asian and Latin American populations. In the 1960s most immigrants came from Europe, so the color question remained acute. Prejudice really was more of a black-and-white issue at that time. But starting in the 1970s there has been a huge influx of color. In 1960, only 9 percent of immigrants were Latin American and 5 percent were Asian. Compare that with 2011 immigration, when 52 percent were Latin American and 28 percent Asian. The color question has changed in America and this has had implications for the logic of affirmative action.
The "diversity argument" that Justice O’Connor proffered in Grutter will probably not survive a substantial challenge because it tries to catch a specific needy demographic – African Americans – with a wide net that also benefits many non-African Americans of color. It would have been better to keep the argument focused on reparation for descendants of slaves, because that smaller net captures the right demographic group. But this argument is problematic for other reasons, namely the historical distance between today’s African-American students and slavery. Switching to an economic criterion for preferential treatment results in two improvements: poor kids get into elite schools and poor minorities are captured within the criterion. But using only the economic criterion creates the stereotyping problems that Dworkin was worried about -- namely, only poor African Americans will be represented on campus.
What O’Connor should have argued was not that "diversity" policies need 25 more years of legal protection (her actual argument), but slavery reparation needs those years of legal protection. That would have been the mechanism needed to keep African Americans inside the affirmative action cohort and other people of color outside the cohort. One wonders, however, how compelling that argument sounds to contemporary American ears, especially when we have a black president in office.
Many middle-class African Americans feel that we’ve outgrown affirmative action. President Obama, for example, has stated that his own privileged daughters don’t deserve affirmative action preferences. Instead, he argues, low-income students of all races should be given preferential treatment. At the same time, his Department of Justice supported the race-based admissions in the University of Texas case.
When Asians score their way into all the slots at the good colleges, will whites argue that they were discriminated against? Actually, Asian scholastic excellence is already so powerful that Asians have to be discriminated against to keep them from overpopulating competitive programs. As recounted by William Chase in an article in The American Scholar, a Princeton University study analyzed the records of more than 100,000 applicants to three highly selective private universities. "They found that being an African American candidate was worth, on average, an additional 230 SAT points on the 1600-point scale and that being Hispanic was worth an additional 185 points, but that being an Asian-American candidate warranted the loss, on average, of 50 SAT points.”
The time has come, I submit, for us to embrace a post-affirmative action future. There may be very good arguments for maintaining preferential treatment for African Americans specifically, but those arguments will probably need definitive detachment from current affirmative action logic. Since African Americans continue to be underrepresented in today’s universities – despite all-time-high representation of nonwhite students – some policies should probably return to the language and logic of reparation (rather than just equal opportunity). This battle is still fightable and winnable, but it will need to start afresh.
As far as overall diversity goes, we might bite the bullet and assert – independent of the affirmative action tradition – that we want a pluralistic campus that reflects our national melting pot. To that end, we might create a quota lottery that replicates, on campus, the same racial demographics of the whole nation (white = 75 percent, Latino = 15 percent, black = 12 percent, Asian = 5 percent, and so on). But the problem here is now obvious. We would need to actively restrain one of the most impressive academic racial groups (Asians) in order to force them to conform to their tiny demographic percentage. This seems both unethical and unwise.
Whatever remains of the diversity argument and the affirmative action mechanisms should be rerouted entirely and enlisted to address the bigger challenge of our time, economic disparity. Ensuring access to poor students of every race is not only pressing, but has the added benefit of being solvable by legislative means. Now that the Court has remanded the case, things will be status quo for the time being. But the demand for strict scrutiny here seems like a technical dodge, and won’t stave off the changing tides of American social justice.
Stephen T. Asma is professor of philosophy at Columbia College Chicago. He is the author of seven books, including Against Fairness (University of Chicago Press), On Monsters: an Unnatural History of Our Worst Fears (Oxford University Press) and The Gods Drink Whiskey (HarperOne).