Why the Supreme Court should stay out of affirmative action.
Here is where the one potentially important difference between Grutter and Fisher comes in. Unlike the University of Michigan Law School, the University of Texas had eliminated race-based affirmative action and achieved some measure of racial diversity without it, using a race neutral “10 percent plan,” in which the university accepted the top 10 percent of students from every school district in the state. But after Grutter reaffirmed the constitutionality of affirmative action, U.T started using racial preferences in addition to the 10 percent plan. The Fisher plaintiffs argue that this was an error: Because the 10 percent plan produced a diverse student body, U.T. didn’t need racial preferences too. So Justice Kennedy might now decide that race-based affirmative action is unconstitutional whenever race-neutral policies, like the 10 percent plan, alone can further diversity.
But what would this mean in practice? How much diversity is enough? And which types of race-neutral plans would a university be obliged to consider before resorting to affirmative action? Admitting students at random would be a race neutral method of achieving a diverse student body—would a selective university be required to do that instead of using affirmative action? Justice Thomas came close to suggesting this in his dissent in Grutter, in which he pointed out that the state probably does not have a compelling interest in operating an elite professional school or university at all. Far from settling the issue, a ruling that tells universities they must first try race-neutral alternatives would ensure a flood of litigation for decades to come and invite federal courts to micromanage every aspect of university admissions policies.
Suppose the conservatives have their way and Court does bar any consideration of race in admissions. Would this really settle the question either? Champions of class-based affirmative action like the Texas 10 percent plan. But if the end goal for such a scheme is racial diversity, isn’t it just as suspect, constitutionally speaking, as an explicitly race-conscious policy? So far no one has made this argument in court, but students from wealthier (and whiter) Texas schools districts have already started complaining that admitting the top 10 percent from every school district is unfair to graduates from more competitive locales. How long before someone expresses her discontent in the form of an equal protection lawsuit alleging racially discriminatory intent?
The Supreme Court’s affirmative action cases distract attention from the real source of the underlying conflict. Admission to a selective university is one of the only reliable avenues to upward mobility in our increasingly class stratified and unforgiving society. It’s understandable that people of all races clamor for the relatively few openings left after the children of wealthy donors, influential public figures, and well-connected alumni have filled most of the entering class. Affirmative action ensures that members of historically excluded minority groups have a competitive advantage in snagging those precious remaining openings. There are sound social justice and pedagogical reasons for this policy, but it is done at the expense of the white and Asian applicants who enjoy neither wealth and influence nor affirmative action preferences. In a sense, the unremitting attacks on affirmative action reflect a misdirected rage inspired by the growing inequalities in our society, of which elite universities are a conspicuous symbol. In a sense, Abigail Fisher may have as much in common with the activists of Occupy Wall Street as with the many conservatives who champion her cause.
A full and honest discussion of affirmative action would confront America’s blatantly racist past, our subtly racist present, and the threat of an increasingly class stratified future. Not exactly a pep talk. Little wonder many people hope constitutional law will step in and save us the job. But if the past is any guide, we’ll still be hurling dishes at each other when the Supreme Court is done.
Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.