Is Affirmative Action In College Admissions Dead?

Prepare your brains. . . we’re going to talk about law. Specifically, we’re going to talk about the Supreme Court “punting” on the issue of affirmative action in the Fischer v. University of Texas case. That’s how everyone is describing it, but they are wrong. The Court’s decision very likely has killed affirmative action in education.

The Fischer case involves a white student who sought admission to UT and ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.

The case was heard by a Federal District Court and then appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit ruled in favor of UT. In reaching that decision, the Circuit Court relied on the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. Basically, that ruling has been interpreted to mean that colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor. That's stupid.

“You can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.

When the Supreme Court agreed to take up the Fischer case, there was hope that the Court would finally kill this hypocritical doublespeak. Conservatives hoped the Court would invalidate all affirmative action. Liberals hoped the Court would endorse affirmative action. The Court did neither, however, which has the MSM universally saying the Court “punted” on the issue.

But that’s not accurate.

What the Court held was this: UT (i.e. the state) bears the burden of proving both a “compelling state interest” in causing diversity at their schools AND UT must prove that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection.

The Court then accepted the Fifth Circuit’s conclusion that UT’s goal of increasing diversity was a valid goal which stands up to strict scrutiny, i.e. the Fifth Circuit correctly concluded that UT had shown a compelling state interest in promoting diversity. BUT the Court rejected the Fifth Circuit’s reasoning on the second part of the test... whether or not UT’s policies were narrowly tailored. In that regard, the Court held that UT needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that UT must prove that is it “necessary” for UT to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”

In other words, the school must show that it could not have generated diversity in any other way. The Court then sent this back to the lower courts for further evaluation in light of this new standard.

So what does this mean?

Well, for people looking for a bold pronouncement: affirmative action is dead/is fine! They were disappointed. They didn’t see that. And since it was sent back, the MSM seems to have decided the Court didn’t resolve anything. Hence, “they punted.” But that’s not true.

What everyone is missing here is that the Court has changed the standard for when race may be considered. In the past, the Court has held that race can be used as “a plus.” But now the test is that race can only be considered when there is “no workable race-neutral alternative” to create diversity. That’s a huge difference. Basically, before you could use race as a plus if you wished, now you need to prove that you can’t achieve diversity through any other means. And here’s the kicker: I can’t imagine a situation in which that would be possible to prove. For one thing, many schools already use alternate means of attracting diversity like setting aside places based on income level or by setting aside places based on geography (top X% of every high school in the state). Given that, how can a school ever argue that there are no workable race-neutral alternatives? They can’t.

What the Supreme Court has done here is kill affirmative action by leaving it in place but making it impossible to use. And in the process, they have killed affirmative action without anyone realizing that’s the case, which is a brilliant way to make a social change because no one protests something they don’t realize has happened.

So what happens next? My guess is that once college lawyers look over this decision, most will simply abandon race-conscious admissions programs and will switch to income or geography-conscious admissions programs. The ones who don’t will be challenged and will find that they can never prove what the Court requires to maintain their race-conscious programs. Thus, ultimately, affirmative action will vanish from college admissions.

Thoughts?