By Stuart Taylor, Jr.
As a critic of the current regime of very large racial preferences, I hope that Fisher v. University of Texas opens the way for a healthy shift of the focus in such lawsuits from legal abstractions to the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity.
I detailed here the reasons for this hope, and I join other racial-preference critics in seeing the decision as a narrow if unsatisfying win on principle.
But I also have a fear, explained below, that Fisher could be a prelude to entrenching racial preferences in university admissions for many more decades, especially if the next few Supreme Court appointments are made by Democratic presidents.
My fear has little to do with the details of Justice Anthony Kennedy's opinion for himself and six other justices. They sent the case back to the 5th Circuit Court of Appeals with orders to require the university to prove that "available, race-neutral alternatives do not suffice" to prove enough diversity.
Rather, my fear is grounded on the extraordinary difficulty and expense of bringing a legal challenge to a university's racial-preference regime, combined with the political odds against the next few appointees to the Court being opponents of racial preferences.
By spurring both sides in such cases to dig up detailed evidence on the operation and effects of preferences -- which I applaud in principle -- Fisher will make suing even more expensive.
Indeed, the obstacles are so formidable that Justice Kennedy had to know he was passing up what may be his only chance to force universities to reduce their heavy reliance on racial preferences.
Kennedy could have done that, without directly overruling any of the Court's precedents, by spelling out detailed rules for evaluating racial preferences, including more attention to socioeconomic diversity and public disclosure of the weight given to preferences and their effects on academic performance.
He chose instead to hold that the university had not yet proved enough to justify its preferences while shedding no light on what more it must prove.
Lawsuits by disappointed applicants like Fisher have been few and far between. Indeed, the Supreme Court has issued only four decisions in its history on admissions preferences -- one in 1978, two in 2003, and now Fisher.
All of these decisions purported to require "strict scrutiny." But in practice, none has made it very hard for universities to give as much weight to race as they wish.
Another challenge by a rejected white student, DeFunis v. Odegaard, was dismissed in 1974 as moot. And the risk of dismissal on account of mootness, or lack of standing, will face every potential future plaintiff.
Consider the other obstacles:
- Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives. Suing has opened white plaintiffs such as Abby Fisher to hostile publicity and even vilification. Fisher was also opposed in the Supreme Court by a very wide array of major establishment institutions.
- It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences. While aggregate data suggest that many or most universities give black applicants a boost over whites equivalent to a full point of GPA, or 300 SAT points, and a larger boost over Asians, almost all universities cloak in secrecy how much weight they give to race.
- Another deterrent to suing is the endless delay that is routine in major litigation. Abigail Fisher had long since graduated from Louisiana State University by the time the Supreme Court got around to deciding her case -- by sending it back to the lower courts for more litigation!
- Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants.
- While Fisher's lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.
Although the justices have agreed to hear this fall what is widely styled an affirmative action case from Michigan, the issue there is not whether racial preferences in state university admissions violate the U.S. Constitution's equal protection clause. It is whether, as the pro-preference plaintiffs claim, Michigan's voters violated equal protection when they required equal treatment of all races by banning preferences in 2006.
That theory may sound Orwellian to you, as to me. But it was good enough for the 6th Circuit Court of Appeals to strike down the voters' ban on racial preferences by an 8-7 party-line vote.
The justices seem very likely to reverse that decision -- I hope by a lopsided vote. And more of the states that allow ballot initiatives may join Michigan, California, Washington, Arizona, and Nebraska in adopting such bans.
But how many more lawsuits directly challenging university racial-preference plans will reach the Court?
Possibly none, until after the 76-year-old Kennedy has left the bench.
Remember Justice Sandra Day O'Connor's 2003 statement for the majority in Grutter v. Bollinger, that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary"?
That would be good. But I'm not betting on it.
Stuart Taylor, Jr., a Washington journalist and Brookings nonresident fellow is the author, along with Richard Sander, of Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It.