The US Supreme Court has handed down what is surely the final decision in the case of Fisher v. University of Texas. It’s official: discrimination in college admissions against white people (and sometimes Asians) is legal. It just can’t be done openly in ways people understand. It must be done in incomprehensible, opaque ways, but we can trust the wise people who run the universities to do it right and to stop doing it when it’s no longer needed.
Samuel Alito wrote a 51-page dissent, in which he roared like a wounded lion, but he was roaring from inside a cage he helped build. In 2013, he was part of the majority that wrote that discrimination is fine, so long as it is dressed up with the right legal mumbo jumbo. All his roaring amounts to nothing more than saying that UT should have used more mumbo and less jumbo.
The case has a sordid history that goes back to 1996. Until then, the University of Texas at Austin–the campus all the cool Texans want to attend–was merrily discriminating against white people as much as it pleased. It got a shock when the Fifth Circuit Court of Appeals ruled in Hopwood v. Texas that racial discrimination had to stop. Then-university president Robert Berdahl predicted this would mean “the virtual resegregation of higher education”–essentially admitting that blacks and Hispanics didn’t have what it takes to be admitted.
Two things saved UT from “resegregation.” The university immediately invented a new, “holistic” way to evaluate applicants, which piously ignored race but gave extra points for growing up without a father, being poor, not speaking English at home, etc. It was a transparent attempt to smuggle race into admissions decisions, but it didn’t work very well; an annoying number of whites were poor and fatherless and therefore got the leg up UT wanted to reserve for non-whites.
In 1997, the year after Hopwood, the state legislature–distressed at the prospect of “resegregation”–smuggled race in legally with its Top Ten Percent Law. This required UT to accept anyone in the top 10 percent of every high school in Texas. This was a cynical way to make the most of something UT and the legislature officially loathe and despise: segregation. There are plenty of public high schools with hardly any whites, so the top 10 percent are the very blacks and Hispanics UT couldn’t admit without racial preferences.
As plenty of people pointed out, this is a strong incentive for non-white schools to stay that way. No black principal wants whites in his school if it means fewer blacks gliding into UT on the 10 percent plan. Whites could theoretically transfer to ghetto schools to make sure they were in the top 10 percent, but this appears to be too high a price to pay even to get into the state’s best public university.
The scheme had other problems. One of the many blessings of “diversity” is supposed to be the destruction of stereotypes, but, as the university admitted, some of the rough trade that showed up under the 10 percent plan “reinforced” “stereotypical assumptions.” This is a delicate way of saying that in some Texas schools it doesn’t take much to get into the top 10 percent and that surly blacks were not contributing to the effect UT was trying to achieve.
This scheme limped along for five years, with UT relieved to have fought off outright “resegregation,” but unhappy it couldn’t discriminate openly in favor its preferred minorities. Things changed in 2003, with the Supreme Court’s two simultaneous decisions on racial preferences at University of Michigan and its law school.
UM had a simple system (though it was a secret that had to be pried out of the university through litigation). The university rated applicants on a scale of zero to 103, and all blacks, Hispanics, and American Indians got an automatic 20 extra points. The Supreme Court decided that was bad. Too mechanical. Too blatant. Too quota-like. In the companion ruling, Grutter v. Bollinger, the justices decided they liked the law school’s more mysterious system better. It was secret too, but it reportedly involved prayerful consideration of the “whole” applicant–earnest weighing and balancing–and race was said to tip the balance in favor of only the most lovable and promising unqualified candidates. Both admissions methods brought in almost exactly the same percentage of favored minorities, but in their Olympian wisdom the justices decided that opaque, incomprehensible discrimination is Constitutional but straightforward discrimination is not.
The justices also harrumphed importantly about how discrimination is potentially dangerous, even for noble purposes, and should be used sparingly. Justice Sandra Day O’Connor famously wrote that she expected preferences would no longer be necessary in 25 years. Does she realize we’re more than half-way there, and blacks and Hispanics aren’t one bit better qualified than they were in 2003?
In any case, the very day Grutter set aside the Hopwood decision, UT whooped with joy and the president announced an immediate return to explicit racial discrimination. For form’s sake it then spent a year cooking up a 39-page “Proposal to Consider Race and Ethnicity in Admissions.” Needless to say, the proposal was accepted.
The university also got the legislature to cap the number of admissions under the “10 percent plan” to 75 percent of the freshman class. This meant that only the top 7 or 8 percent got automatic admission, and left 25 percent of the class open for mysterious, Grutter-style race preferences for blacks and Hispanic.
That was the situation when Abigail Fisher, the plaintiff in the UT cases, applied for admission in 2008. She wasn’t in the top 7 or 8 percent of her class, so she had to compete for one of the slots in the remaining 25 percent of the class. She was bumped while less qualified non-whites got the nod. Both the trial court and the Fifth Circuit found that UT had just the right mix of mumbo and jumbo in its admissions policies, which meant that Miss Fisher’s rights had not been violated. The Supreme Court decided to take a look, and ruled in 2013.
In what is now called Fisher I, the justices said that the Fifth Circuit had not given UT’s race preferences “strict scrutiny” to see if they were “narrowly tailored” to achieve the “compelling need” of campus diversity. They said that the appeals court had given too much deference to UT’s assurances that diversity was an essential aspect of education and to its claims that the school was achieving it with the perfect combination of mystery and good will.
All the “conservatives” on the Court, along with Justices Breyer, Kennedy, and Sotomayor agreed. Justices Scalia wrote separately that although he didn’t like race preferences of any kind, the only question before the court was whether UT had been subject to “strict scrutiny” and he decided it hadn’t. Only the sole black justice, Clarence Thomas, wrote that all this learned jabber about “strict scrutiny” was baloney, and that universities should be barred from considering race at all.
The case went back to the Fifth Circuit, where the judges sniffed at UT’s race preferences a little harder than before and, of course, liked what they smelled. The Supreme Court decided it wanted another sniff, too, and that’s why we now have Fisher II.
This case therefore never was about the principle of racial discrimination or whether “diversity” is a good enough reason to practice it. The “conservatives”–except for Justice Thomas–had already sold out on that, so the arguments are technical and not very interesting.
There are some funny lines, though. In confirming the constitutionality of racial discrimination against whites, the affirming justices Kennedy, Sotomayor, Ginsberg, and Breyer wrote that there was only a teeny, tiny bit of it. Quoting UT, they claimed that “there is no dispute that race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.” (In his dissent, Justice Alito wanted to know why this nearly irrelevant factor–race–was the only one that was stamped right on the cover of every admissions folder.)
But the best line from the affirming decision is this: “As the Defendants [UT] point out, the consideration of race, within the full context of the entire application, may be beneficial to any UT Austin applicant–including whites and Asian-Americans.” How can the university have made that claim with a straight face? It’s not possible to imagine an application being saved from the reject pile because someone piped up, “But didn’t you notice? The candidate is white. We’ve just got to admit one more white English major.”
So what did the Miss Fisher’s lawyers argue? They said UT had failed to show that campus diversity is a “compelling need” that is so compelling it justifies the legal equivalent of nuclear war, that is, official racial discrimination. To which the court replied:
The University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.” . . .
As this Court has said, enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”
Astonishingly, the court required no evidence that “diversity” actually produces these wonders. If UT says so it must be so.
The plaintiff also complained that UT had never defined a numerical goal for “diversity.” Without a clear goal, we will never know if it has been reached or whether the means to reach it are “narrowly tailored” as the law requires. The Court replied that diversity is not “a goal that can or should be reduced to pure numbers,” and that quotas and straight racial balancing are unconstitutional anyway. We must defer to the university’s judgment.
Justice Alito was having none of this:
On remand, [when the case was sent back to the appeals court] UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected.
Justice Alito praised the university for wanting to fight stereotypes, etc. However:
[H]ow will a court ever be able to determine whether stereotypes have been adequately destroyed? Or whether cross-racial understanding has been adequately achieved? If a university can justify racial discrimination simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals . . . then the narrow tailoring inquiry is meaningless.
Justice Alito summarized all of UT’s blather about the mystic joys of diversity and how to achieve in one sentence: “In other words: Trust us,” adding, “This is a plea for deference–indeed, for blind deference–the very thing that the Court rejected in Fisher I.”
The plaintiff also pointed out that the law requires that UT’s race preferences be the last resort; if it can get diversity by some method that seems racially neutral–like the 10 percent plan to bootleg non-whites onto the campus–then racial discrimination is illegal. The university says it tried and tried. It “opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events”–just to get more non-whites to apply. It just didn’t work so it resorted gently to race as a “factor of a factor of a factor” in its beautifully holistic admissions process. The plaintiff wanted to know how we would know if all this recruitment was working or not, but UT again refused to sully the process by “reducing it to pure numbers.”
The plaintiff argued that the entire freshman class could have been filled with the 10 percent plan, and that would have achieved diversity without overt discrimination. The university replied–and the Court agreed–that you can’t get all the splendor of diversity from class rank alone:
That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.
Those liberal justices know how to lay it on thick, don’t they? And they really laid it on in their conclusion. The university:
should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values. . . . [T]he University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.
Justice Alito, for one, can’t imagine the admissions committee agonizing over whether race preferences have become “divisive.” As he noted in his dissent, the university “has generally employed race and ethnicity in the most aggressive manner permitted under controlling precedent,” and that the moment the Grutter decision was announced, “UT leapt at the opportunity to reinsert race into the process.”
He also pointed out that at various points in the litigation the university has offered several other reasons to justify racial preferences: diversity in specific classrooms, making sure there are enough blacks and Hispanics so they won’t feel lonely, and making sure UT reflects the racial mix of the state. None of these, he pointed out, is necessarily a “compelling interest,” nor were they presented as clear enough goals so that their achievement by “narrowly tailored” means could even be measured.
Justice Alito also noted that although UT refuses to divulge the numbers that would reflect that happy day when diversity finally comes, it is happy to cite figures to show it hasn’t been achieved. For example, it produced a study of certain classes of five students or more that:
indicated that 52% of these classes had no African-Americans, 16% had no Asian-Americans, and 12% had no Hispanics. . . . Based on this study, UT concluded that it had a “compelling educational interest” in employing racial preferences to ensure that it did not “have large numbers of classes in which there are no students–or only a single student–of a given underrepresented race or ethnicity.”
No non-whites in a class is bad because all those benighted white people will miss their dose of diversity. Only one non-white is no good either, because he might feel “isolated” or think he had to be a “spokesperson” for his race. So at various points in the litigation UT proposed a “critical mass” theory of diversity that would spread its benefits to as many classes as possible and also make sure non-whites aren’t lonely.
Justice Alito saw through this. Never, he pointed out, had UT ever played the race-preferences game to get more non-whites into specific classes (Physics? Astronomy? Organic Chemistry?) where blacks and Hispanics were scarce. The object was always simply to bring in more “underrepresented minorities,” who were welcome to all clump together in Sociology of Sports or Racism in America. Also, as Justice Alito pointed out, there are fewer Asians on campus than Hispanics–but Asians are both way overrepresented compared to their population in the state and victims of race preferences, just like whites. If you want a “critical mass” of Asians, Justice Alito wrote, it would be easy to get it, but UT seems to think that Asians just don’t bear the same gifts of diversity that blacks and Hispanics do. Apparently they don’t get lonely, either. (In 2008, for example, UT enrolled 1,338 Hispanic freshmen and 1,249 Asian freshmen. The state as a whole was 39.6 percent Hispanic and 3.8 percent Asian.)
Justice Alito pointed out that UT’s briefs mention Asians so rarely it’s almost as if they don’t exist. Of course, this is because Asian achievement refutes all of UT’s buncombe about how diversity can’t be achieved without racial discrimination.
Justice Alito put up a good fight, but he shouldn’t have been surprised at the outcome. He should have known that anything short of an outright ban on race preferences will guarantee entrenched discrimination against whites. The Supreme Court can intone all it wants about “strict scrutiny” and “narrow tailoring.” Any exception will be ruthlessly exploited, and Justice Alito should have known that.
I predict no more “affirmative action” Supreme Court cases for years to come. The Court has spoken: Discrimination against is whites is legal under certain circumstances, and if you shop around for the right judge, those circumstances can be pretty broad. At least discrimination against whites is not yet mandatory. If Democrats continue to appoint the justices, the next big “affirmative action” case could be whether universities should be required to discriminate against whites.
In Fisher II, as usual, Justice Clarence Thomas was the only one on the bench who was thinking straight. He agreed with Justice Alito’s dissent, but wasted no time of his own on the finer points of when discrimination is illegal and when it is sufficiently opaque. In a simple, one-page dissent, he wrote that if it were up to him, he would overturn Grutter and ban all discrimination.
Of course, it is only in our insane, topsy-turvy world that Justice Thomas sounds like a hero. In a properly race-conscious world, individuals and at least private organizations would discriminate entirely as they saw fit. Far-seeing whites should think carefully about arguments against discrimination in principle because discrimination, private and even public, is necessary to our survival. In cases such as Fisher, we are drawn to anti-discrimination arguments because the only acceptable, legal targets of public discrimination are ourselves. Such is the astonishing, absurd, and suicidal fix we whites have gotten ourselves into while we are still, for the time being, the majority.