Affirmative action heads back to the Supreme Court

The Supreme Court announced on Tuesday that it would hear a challenge to race-based university admissions, in the form of an appeal from a white student who was denied admission to the University of Texas, in a process where race was one of the factors under consideration.

The L.A. Times provides a concise summary of the Fisher v. University of Texas case:

In 1997, the Texas Legislature adopted the so-called “Top Ten” plan for choosing new students. As such, the University of Texas was told to accept the top 10% of the graduates from all the state’s high schools. The goal was to maintain racial and ethnic diversity in the freshman class without using race as a factor.

The plan appeared to work. By 2004, 21% of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action.

After the high court endorsed continued affirmative action through O’Connor’s opinion, Texas university officials announced they would again give a preference to “underrepresented minorities” beyond those who were admitted under the “Top Ten” policy. In 2007, the university announced a “record high” number of entering black and Latino students, who made up about 26% of the freshman class.

In 2008, Abigail Fisher was turned down for admission to the University of Texas. Her grades were not good enough to put her in the top 10% of her class, but she said her tests and grades “exceeded those of many of the admitted minority candidates.” She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.

Fisher lost her case in federal court, and in the U.S. 5th Circuit Court of Appeals, because in a previous Supreme Court decision written by Justice Sandra Day O’Connor, it was decided that racial discrimination in university applications was an acceptable tool for pursuing the government’s compelling interest in creating a diverse educational environment. 

O’Connor famously wrote that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further interest approved today.”  In other words, America needed another quarter-century to evolve, at which time it would no longer be necessary to discriminate against students of the wrong skin color to engineer a sufficiently diverse environment.  That was 8 years ago, but since then O’Connor has been replaced by Justice Samuel Alito, who is not a fan of affirmative action, and might therefore be willing to re-calibrate the evolutionary calendar.  He’s joined by Justices Thomas, Scalia, Roberts, and Kennedy, so affirmative-action proponents have good reason to be worried.

Also of note, Justice Elena Kagan has already recused herself from the case, due to her time working as President Obama’s Solicitor General.  The current Supreme Court schedule means opening arguments are likely to occur in October, smack-dab in the middle of a heated presidential election.

The University of Texas situation presents a perfect opportunity to re-visit affirmative action.  The “top ten percent” color-blind system was producing plenty of racial diversity – more than the old, purely affirmative action regime could manage – but it was deemed insufficient, and Fisher wound up receiving manifestly unfair treatment, in the pursuit of a diversity level which apparently cannot be quantified through any form of mathematics or logic.  One of the problems with manufacturing “diversity” is that it seems no one can agree on precisely what the end result should look like.

Fisher is challenging the University of Texas on equal protection grounds, which is interesting, because we’ve been hearing a lot of talk from the current Administration about “equality” lately, and how everyone should play by the same set of rules.  Everyone understands President Obama doesn’t really mean that – his form of activist, redistributionist liberalism is entirely based on treating people unfairly, in the service of “the greater good” – but it will be interesting if this fairness-obsessed Administration chooses to weigh in on the side of highly specific unfairness, carried out in the service of a “compelling, otherwise unsatisfied government interest” that cannot be precisely defined… and is therefore likely to remain both unsatisfied and compelling forever, unless the Supreme Court puts a stop to it.


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