I accepted some warm invitations from the Federalist Society chapters at law schools in the chilly Midwest and spoke last week at Indiana University, Notre Dame, and the University of Michigan about Fisher v. University of Texas, the case before the Supreme Court challenging the use of racial preferences in university admissions. Here's an edited version of what I said.
Abigail Fisher is a young woman who grew up in a Houston suburb and always wanted to go to the University of Texas. So, when she was in high school, she applied there, but she did not get in. The University of Texas admits that it considers skin color in deciding who gets admitted; and if your ethnicity is thought to be "underrepresented" at UT (that is, if you are black or Latino), it helps you get in, but if you are thought to be "overrepresented" (that is, if you are white or Asian), then your skin color hurts you. So Abigail Fisher, who is white, sued.
Should she win? Well, as a good conservative, I think the answer should depend on what the law says, rather than what some judge thinks is a good policy, and the most obvious law to look at is Title VI of the 1964 Civil Rights Act. It reads: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Now, UT receives lots of "federal financial assistance," and Abigail Fisher clearly was "subjected to discrimination," and it was "on the ground of race, color, or national origin," so the answer in a just world is that she should win her lawsuit.
The Interesting Twist in Texas
Alas, a five-justice majority of the Supreme Court ruled in the 1978 Bakke case that Title VI doesn't mean what it says - that Congress didn't intend to make racial discrimination illegal any more broadly than the Fourteenth Amendment makes it. And that means that, while racial discrimination is almost always illegal, it isn't if it is undertaken pursuant to a "compelling interest," and if the discrimination is "narrowly tailored" to achieving that interest. What's more, a majority of the Court ruled later in the 2003 Grutter case that the "educational benefits" from having racial and ethnic "diversity" in the student body are a compelling interest that can justify such discrimination.
Well, then, how can Abigail Fisher hope to win? The answer is that the situation in Texas has an interesting twist. A federal court of appeals ruled in the 1990s - prior to the Supreme Court's later Grutter decision - that "diversity" was not a "compelling" interest, so UT could not use racial preferences. In response, the Texas legislature - which wanted to ensure continued racial diversity anyhow - passed the Top Ten Percent law, which says that any student graduating in the top ten percent of his or her class at a Texas public high school is automatically eligible to go to UT. Because of the demographics of Texas public high schools, many of which are heavily black or Latino, this guaranteed plenty of racial diversity at UT
Now, remember that in its 2003 Grutter decision the Supreme Court said that, while diversity is a compelling interest, the use of racial preferences had to be "narrowly tailored" to achieving that diversity. And, the Court said, one element of narrow tailoring is that diversity can't be easily achievable except by the use of outright racial preferences.
Doubling Down on the Ten Percent Rule
So, say Abigail Fisher's lawyers, that means that UT loses, because UT was bragging about how, by adopting the Top Ten Percent plan, it had achieved as much racial diversity without using outright racial preferences as it had had beforehand, when it was using racial preferences. It had no justification for announcing, on the day the Grutter decision came down, that now it was going to reinstate racial preferences on top of the Top Ten Percent plan.
UT's response is that it wants to have even more diversity than it used to have, for two reasons. First, it wants to have not only campus-wide diversity, but also more diversity on a classroom-by-classroom basis. Second, the general population of the state of Texas is getting more diverse, so UT says it is entitled make its student body more diverse, too.
The Supreme Court may well decide the case simply on the basis of which side has the better of these "narrow-tailoring" arguments, but the Center for Equal Opportunity and a lot of other folks are arguing that the Supreme Court should take this opportunity to reconsider its 2003 Grutter decision - and rule that "diversity" is not a "compelling" interest in the first place, and that therefore no university should be using racial preferences anymore.
When you think about it, the argument that there are compelling "educational benefits" from a diverse student body just doesn't hold up. The claim is that black and Latino students will say something in interracial conversations, in or out of the classroom, that are so insightful and profound and so unlikely to be heard or learned in any other way that they justify racial discrimination to make sure those conversations take place. And it must be also that admission officials can predict that the observations will be made, and that they can predict that they are much more likely to be made by students who have one skin color rather than another skin color. (More here on interracial conversations as "educational benefits.")
Now, all that seems very farfetched to me. But let's suppose that maybe there is something to it, that it is at least somewhat more likely that maybe something very important is going to be learned at least sometimes as a result of using racial discrimination in admissions.
Even if we assume this to be the case, we have to ask another very important question: Is the benefit to these interracial conversations worth the costs that are inherent to the racial discrimination used to achieve the purported benefit? The costs, after all, are many and much more undeniable than any benefit.
Here's a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure (consider, in particular, the evidence marshaled in the recent book Mismatch by Richard Sander and Stuart Taylor); it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership - an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).
It's not a close question: The costs overwhelm any possible benefit, so there is no "compelling" reason to engage in discrimination, and so the Supreme Court should rule that racial preferences should not be used in university admissions.
Roger Clegg is president and general counsel of the Center for Equal Opportunity.