An End to Racial Preferences?

In 2003, 25 years after its last major decision on racial preferences, the Supreme Court ruled on two such cases involving the University of Michigan. In Gratz v. Bollinger, the court decided the university’s undergraduate admissions policy of granting 20 additional points (on a scale of 47 to 150) to non-Asian minorities was unconstitutional. The court’s 6-3 majority agreed that the points-based preference system “ensures that the diversity contributions of applicants cannot be individually assessed” and was therefore too rigid.

The same day, in the case of Grutter v. Bollinger, the court upheld U-M’s law school admissions policy that considered race as part of a “holistic” evaluation of the applicant. Justice O’Connor, writing for the 5-4 majority, argued that “diversity” is such a compelling interest that public universities may discriminate against whites and Asians in order to achieve it. Justice O’Connor wrote that obtaining a “critical mass” of minorities would help ensure “the educational benefits that flow from a diverse student body.”

While on the surface, the two rulings appeared to limit the scope of affirmative action, Jared Taylor argued that they actually made things worse. The “rigid” system giving minorities 20 extra points was at least honest. Whites knew exactly how much discrimination they faced. The law school’s discrimination, which the court found constitutional, was shrouded in “holistic” mumbo jumbo that kept it completely out of sight. Mr. Taylor predicted that if the University’s undergraduate admissions took this underhanded, back-room approach, it would be worse for whites.

As Steve Farron noted in the January 2007 issue of American Renaissance, that is exactly what happened. After controlling for in-state/out-of-state residence, sex, and alumni connections, in 1999, a black undergraduate applicant to the University of Michigan was 27 times more likely to be admitted than a white student with the same SAT score, high school grades, and background. Two years after the Gratz and Grutter decisions, black applicants were 71 times more likely to be admitted than equivalent whites. As Prof. Farron pointed out, “the median combined verbal and math SAT scores of undergraduates admitted in 2005 was 1160 for blacks, 1260 for Hispanics, 1350 for whites, and 1400 for Asians (scores run from 400 to 1600).” The university had replaced honest discrimination with dishonest discrimination that was even more egregious, and that amounted to racial quotas.

Justice O’Connor noted in the Grutter decision that “It would be a sad day indeed, were America to become a quota ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all . . . We expect that in twenty-five years from now, the use of racial preferences will no longer be necessary.”

Of course, race realists know that these preferences will always be necessary to achieve “diversity,” but there is hope that the era of racial preferences will come to an end before that 25-year mark. On Tuesday, the Supreme Court agreed to hear a case that questions the basis of the Grutter decision and may lead to the court limiting, or even overturning, that precedent.

In Fisher v. University of Texas, a white student named Abigail Fisher argues that she was denied admission to the University of Texas because of her race. In 1996, the Fifth Circuit Court ruled in Hopwood v. Texas that “the University of Texas School of Law may not use race as a factor in deciding which applicants to admit.” To circumvent the ruling, the Texas legislature (and “conservative” Governor George W. Bush) passed the “Top Ten Percent Law,” whereby students in the top 10 percent of each high school’s graduating class are automatically admitted to the Texas public university system. In theory, the law is race-neutral, but in practice it is not, since the same 10 percent rule that is applied to high-achieving college prep schools is also applied to miserable inner-city schools. This policy accounted for the admission of the majority of students at the University of Texas.

When the 2003 Grutter decision overturned the Hopwood ruling, the University of Texas decided to increase diversity beyond what could be achieved with the Top Ten Percent Law by considering the race of the students who did not make the 10 percent cutoff. As a result, in 2005, University of Texas at Austin was fifth in the nation in granting undergraduate degrees to non-whites. Miss Fisher fell just outside her school’s top ten percent, and the University of Texas rejected her in 2008.

A federal district court and a three judge panel from the Fifth Circuit ruled in favor of the University of Texas, reasoning that the university’s admissions policy conforms to the guidelines of Grutter. The Fifth Circuit voted not to hear the case en banc, and Miss Fisher appealed to the Supreme Court last year.

Miss Fisher’s lawyers have asked the court first to consider whether the university’s admissions policies even meet the guidelines of Grutter. The university insists on racial diversity not just in admissions, but in majors and classrooms. Miss Fisher’s lawyers say this is “blatant racial balancing” and violates Grutter. It is possible, therefore, that the court could simply decide the university’s policies do not meet the standards established in Grutter without revisiting that case.

There is reason to believe, however, that the court will narrow the scope, if not outright overturn, Grutter. Justice O’Connor has retired from the court and has been replaced by Justice Alito, who has voted with conservative judges on cases involving racial classification by the government. As for the other justices, in a 2007 case involving the role race could play in assigning children to schools, Chief Justice Roberts wrote that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Justices Alito, Scalia, and Thomas agreed, while Justice Kennedy filed a concurring opinion that invalidated the racial balancing programs, but preserved the right of school districts to consider race in some instances. Justice Kagan, who would undoubtedly vote to preserve or even extend racial preferences, has recused herself from Fischer because she was involved in the case when she served as solicitor general.

The current lineup of justices could therefore overturn Grutter. And if the court decides public universities may not use racial preferences, this prohibition would extend to most private universities under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in institutions that receive federal funding. And as Adam Liptak, Supreme Court correspondent for the New York Times, noted “If the diversity rationale falls apart in university admissions, it could start to test the societal commitment to it in other arenas, notably private hiring and promotion.”

Opening arguments are set to take place this October, just before the presidential elections. President Obama’s chief spokesman Jay Carney was asked to comment on the Supreme Court’s decision to hear the Fisher case:

President Obama has said that, while he opposes quotas, and thinks an emphasis on universal and not race-specific programs is good policy, considering race along with other factors can be appropriate in certain circumstances. But again, I want to make sure that’s viewed as a broad statement of where he has been and where his position is broadly, not a reference to this specific case.

This case could set the stage for a very interesting, racially charged election season.