Disappointing Decision With Some Silver Linings

The Supreme Court ruling on Fisher v. University of Texas at Austin, is disappointing, writes Roger Clegg, but it leaves plenty of room for future challenges to racial preference policies.

June 24, 2016
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The U.S. Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.

The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.

As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: if a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state Legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the court says, only a “factor of a factor of a factor” at UT, was considered contextually, does not automatically help members of any group and could in theory help the members of any group, including whites and Asian-Americans. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”

Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.

More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions would continue to use such preferences, even if the court had left the door open only a tiny crack. If the court had said, “You can use racial preferences only if you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.

That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.

Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.

The bottom line is that the court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions -- and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s (and Justice O’Connor’s and Justice Powell’s) hoops have been jumped through.

And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)

And the costs? Just these: it is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination. It creates resentment. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients. It mismatches African-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.

And more: it compromises the academic mission of the university and lowers the overall academic quality of the student body. It creates pressure to discriminate in grading and graduation. It breeds hypocrisy within the college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership --an untenable legal regime, as I said before, as America becomes an increasingly multiracial, multiethnic society.

So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.


Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of the plaintiff over the course of the Fisher litigation.


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