The Secret Danger in the Supreme Court’s Affirmative Action Ruling

The law, lawyers, and the court.
June 27 2013 3:40 PM

The Double Secret Danger in the Supreme Court’s Affirmative Action Ruling

Will only elite wealthy colleges end up with racial diversity?

Plaintiff Abigail Noel Fisher (left) speaks to the media after the U.S. Supreme Court Supreme heard arguments.
Plaintiff Abigail Noel Fisher (left) speaks to the media after the U.S. Supreme Court Supreme heard arguments in her case on October 10, 2012 in Washington, DC.

Photo by Mark Wilson/Getty Images

For supporters of affirmative action, the Supreme Court’s opinion in Fisher v. University of Texas, Monday’s ruling on affirmative action, is like Animal House’s double secret probation. The Supreme Court did not end race-based affirmative action programs. Instead, the majority of seven doubled down on “strict scrutiny”—the relatively exacting standard courts use to assess whether the government can make a law that treats people differently on the basis of race. This isn’t new—the federal courts have applied strict scrutiny to race-based affirmation action for 35 years, requiring programs to be “narrowly tailored” to serve a university’s “compelling interest” in the pedagogical benefits of diversity. But if the court’s previous rulings already required strict scrutiny, Fisher imposes double secret strict scrutiny.

 

But Fisher still leaves several questions unanswered. The court said that before turning to traditional affirmative action, schools have to prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.” How will we know? Back in 1996, when U.T. used race explicitly, it admitted an entering class that was 4.1 percent black and 14.5 percent Hispanic. Then it turned to a race-neutral admissions policy (the Top Ten Percent plan, with automatic acceptance for the best 10 percent of each high school’s graduating class) and the admitted class was 4.5 percent black and 16.9 percent Hispanic. Because the numbers are similar, it may look as if adding race-based affirmation action was unnecessary. But numbers don’t tell the whole story. Many at UT felt the Top Ten Percent plan was a blunt instrument that didn’t allow admissions officers to consider the varying quality of different high school programs in the state: They worried that the students admitted this way were not on the whole as qualified as those admitted under the more flexible approach that included affirmative action. And the Top Ten Percent plan only worked because Texas’ neighborhoods and high schools are highly segregated. So universities that draw applicants from a pool of less segregated high schools couldn’t use a similar approach.

 

Another open question: What exactly is a race-neutral means of achieving racial diversity? Some opponents of affirmative action argue that a properly crafted class-based affirmative action plan would yield significant racial diversity. But in order to even get close to the type of racial diversity most affirmative action plans achieve, it’s not enough to simply consider family income or even wealth. You need to include a long list of factors, such as the educational achievement of the applicant’s parents and grandparents, median income of the applicant’s neighborhood, whether English is the main language spoken at home—the list goes on. At some point, as Justice Ruth Bader Ginsburg pointed out in her Fisher dissent, you have to wonder whether such a “race-neutral” alternative is really just a disguised and hobbled form of regular old affirmative action.

 

This brings us to the secret part of Fisher’s double secret strict scrutiny. The court’s focus on race-neutral alternatives encourages universities to pursue racial diversity by proxy, or to hide race consciousness in increasingly subjective and individualized reviews of admissions files. Texas’ Top Ten Percent plan, Ginsburg reminds us, is as race-conscious as any affirmative action program: It was devised precisely because admitting a sample of students from each racially segregated public school would guarantee racial diversity at the college level. Any admissions policy that uses class considerations to produce racial diversity has the same problem.

 

That many opponents of affirmative action are willing to countenance such transparent evasions proves the weakness of the crucial constitutional argument against affirmative action. This is Justice Clarence Thomas’ claim that it’s impossible to distinguish between well-meaning racial classifications and malicious ones, between efforts to promote integration and to promote segregation. After Brown v. Board of Education invalidated explicit segregation in public schools, districts in the South came up with a host of formally race-neutral alternatives, such as assigning students to the same schools they had attended in the past (when the schools were segregated by the force of law). These schemes died because the courts saw them for what they were: segregation by other means. If there is really no difference between affirmative action and Jim Crow, then any race-neutral effort to promote racial diversity should be as illegal as a race-neutral attempt to perpetuate Jim Crow. Indeed, if we follow this logic to its conclusion, the desire to have racially integrated schools, workplaces, and neighborhoods is as morally reprehensible as a bigot’s desire to avoid contact with blacks: The only acceptable position on race is complete indifference.

 

Fisher also says the courts should not defer to universities about whether they need affirmative action to achieve diversity. But if they don’t defer, then judges must decide how much and what type of diversity is good enough and how much and what type some hypothetical race-neutral alternative would achieve. For instance, consider an alternative to affirmative action that admits most black and Hispanic students on the basis of family income and wealth. Won’t a freshman class in which the black and Hispanic students are disproportionately poor reinforce racial stereotypes, make it less likely that students of different races will have things in common, and hence undermine the benefits of diversity? Can the university consider diversity within a racial group when defending traditional affirmative action?

 

The Constitution doesn’t answer these questions, nor do courts have any special insight into them. That’s why the lower court in Fisher wisely opted to defer to U.T.’s judgment that it needed affirmative action. Such deference is a good idea, even if you think affirmative action isn’t. There are plenty of respectable reasons to oppose affirmative action: You might think it’s an unjustified departure from the ideal of objective merit. Or that it causes more resentment and racial discord than it’s worth. Or that it’s a band-aid that fails to deal with the severe root causes of racial inequality. Or that its cosmetic egalitarianism distracts from the corrupt, class hierarchy that powers selective universities. But none of these are constitutional reasons. They involve political commitments and public policy judgments. Universities aren’t perfect, but they are better at making these decisions than judges are. And they are kept in line by the political process (which has banned affirmative action in seven states) and by faculty and alumni, many of whom have their own reservations about affirmative action.

 

Some commentators hope that by forcing selective schools to focus on class diversity, a crackdown on affirmative action is a blow struck against elitism. But instead, restricting affirmative action may turn racial diversity into another luxury that only the most elite schools can offer. That’s the direction public K-12 education has taken since the Supreme Court’s 2003 ruling making it harder for K-12 schools to pursue racial integration. Today, in many cities, you’re more likely to find a racially diverse student body in an elite private school that can still consider race in admissions than in a public school that, for the most part, can’t.

 

The effect of Fisher may be similar, even though it will apply to both public and private colleges and universities. A rich university with a small entering class can afford to review each plausible application individually and apply the highly nuanced type of evaluation that might yield racial diversity without explicitly considering race. But a cash-strapped public university with a large entering class must rely on a relatively simple formula for much of its screening. Few public schools will be able to turn to something like the Top Ten Percent plan as a simple proxy for race. A rich university can afford costly outreach efforts and big scholarships to attract poor—disproportionately minority—students. A school with a limited budget probably can’t. Thanks to the Supreme Court, the experience of racial diversity may soon become the exclusive mark of an elite education.

Richard Thompson Ford teaches at Stanford Law School and is author of Rights Gone Wrong: How Law Corrupts the Struggle for Equality.

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