Is Affirmative Action Finished?

“If this Court rules that the University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen,” Gregory Garre, the lawyer for the University of Texas, told the U.S. Supreme Court on Wednesday. “Experience tells us that.” When the use of race has been dropped elsewhere, “diversity plummeted.”

You say that like it’s a bad thing, Justice Antonin Scalia in essence replied. “There are—there are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a ... slower track school where they do well,” he said. “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.”

Garre replied, “I don’t think the solution to the problems with student-body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

There’s a sample of Wednesday’s thoroughly unpleasant oral argument in Fisher v. University of Texas. Fisher has become the Flying Dutchman of American law. “We’re just arguing the same case!” Justice Anthony Kennedy, who wrote the opinion the first time the Court considered it, said Wednesday.

The skeleton at the helm of the good ship Fisher is the Project on Fair Representation, a very determined conservative advocacy group; but the wind in its sails is the unrelenting hatred at least three, and probably four, justices feel for any program anywhere that uses race to advantage minorities in any way.

As Scalia’s remark suggests, ill feeling was on full display Wednesday. Chief Justice John Roberts scoffed at the idea that racial diversity had any educational value: “What unique perspective does a black student bring to a class in physics?” Justice Samuel Alito in effect suggested that, by seeking more minority students than it already has, the University of Texas is belittling the minority students already enrolled. And Justice Sonia Sotomayor, as passionately pro-affirmative action as Scalia or Roberts is against it, pursued the Project’s lawyer, Bert Rein, with questions until he and she got into a barely civil shouting match.

The University of Texas is the state’s premier educational institution. Until 1995, UT allowed its admissions officers to use race as a “plus” factor in admissions. This is the method endorsed by the United States Supreme Court in the case of Bakke v. Regents of the University of California. It means that, when deciding among a pool of qualified applicants, a university can consider an applicant’s race along with his or her test scores and grades, and such things as extracurricular activities, athletic or musical ability, and special achievements outside school.

Bakke was decided in 1978. Conservatives hated it from day one, and battered at the precedent. In 1995, they convinced the Fifth Circuit Court of Appeals to declare it dead, and to order UT to stop any use of race. The Supreme Court declined to intervene. Minority enrollment declined sharply.

In 1997, the Texas legislature created the “10 percent plan.” Under the plan, any student who graduates in the top 10 percent of a Texas public high school is guaranteed admission to UT. Texas is geographically, and thus educationally, highly segregated by race. Many high schools are mostly white; a smaller number, chiefly in urban areas, are mostly African American or Latino. Thus, not by coincidence, the 10 percent plan brought diversity numbers up, filling most of the entering class. The remaining 25 percent of in-state students were admitted by a traditional, “holistic” program that evaluates their entire record—not including race.

In 2003, however, the Supreme Court reaffirmed the Bakke rule in a case called Grutter v. Bollinger. Race as a plus was back on the table. The University of Texas adopted a plan to use race as a plus in deciding whom to admit to the roughly 25 percent of its admissions that are not automatic under the 10 percent plan. The system seemed to be carefully designed to comply with Grutter: Race was not dispositive; racially diverse applicants weren’t given a fixed numerical boost in a scoring system; admissions officers did not track the number of minorities admitted during a given cycle, thus eliminating pressure to boost minority admits late in the cycle to meet a stated or unstated goal.

In 2007, a white high-school senior named Abigail Fisher from Sugar Land, Texas, applied to UT. She was in the top 12 percent of her class at Stephen Austin High School, below the cutoff, and UT didn’t take her as a holistic admit. She sued, arguing that the use of race in any part of the admissions program violated her rights. She couldn’t prove that she would have gotten in without the new program; her injury, she argued, was simply having to be judged by race in any degree.

In 2012, Abigail Fisher graduated from Louisiana State University. That same year the Court heard her case—even though, by then, the case was moot. Many people expected Fisher I to be the death knell for Grutter; but in 2013, the Court, 7-1 reaffirmed the Grutter rule.* It remanded the case to the Fifth Circuit to make sure that Texas’s program really passed “strict scrutiny”—meaning, in essence, that it must further a “compelling” interest and that it must be “necessary” to do so. Was the UT program really necessary, in light of the top 10 percent plan and other circumstances? In 2014, the Fifth Circuit looked again at the program and concluded that it passed that demanding test. Now the case is back at 1 First St. NE.

The Texas plan, Rein told the Court, is unconstitutional because it is a quota; it doesn’t actually measure how many students it affects or have a target number for a “critical mass” of students; only a few students are admitted because of race, suggesting that the program’s not needed; and it’s impossible to know how many students are really admitted because the University doesn’t keep detailed records. But this is a Catch-22—if the program did define a clear target and measure and record its progress, then it really would be an unconstitutional quota.

It is tempting to call this doublethink, but it’s not. The arguments aren’t meant seriously as arguments. There’s been a legal debate about “diversity” since 1978; everybody knows all the moves and nobody’s mind is changing. CFR’s real claim is that use of race to increase racial and ethnic diversity at institutions like the University of Texas is immoral, dangerous, and a violation of the equal-protection rights of whites. It can’t make that argument openly—Fisher I held that universities can use race. So it uses coded language.

The argument was as dispiriting to hear as it must have been to conduct. In the weird constitutional language of affirmative action, no one is allowed to say what they really mean. Under the Bakke rule, the only “compelling interest” a university can pursue is the benefit of “educational diversity”—that is, the idea that all students receive a better education if their classrooms include students of different racial and national origins.

Thus, a lawyer who argued that minority students deserved affirmative action, or received a special benefit from it, would lose on the spot. But the anti-affirmative action justices won’t play by that rule. Scalia now thinks minorities would be happier with their own schools. Justice Alito wondered why minority students can’t go on to have good careers if they go to lesser schools. (The orthodox answer is that Alito is asking the wrong question; he needs to ask how their presence benefits all the students.)

Here is a key question in this case: If the 10 percent plan already produces some increase in minority enrollment, why does UT need more?

Here are the unspoken questions in this case: How many minorities are “enough”? How many is too many? And when will all this affirmative action end?

“Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 years ago,” Roberts asked Greg Garre. “Are we going to hit the deadline? Is this going to be done, in your view, in 12 years?” The implication was clear: Affirmative action isn’t working; America is no closer to racial justice than it was a decade ago.

Let’s call the whole thing off.

That would be a bad idea, Solicitor General Donald Verrilli told the Court. Because admission to first-rate schools is the gateway to high-level careers, the nation needs to educate a diverse class: “The interest in ensuring that we have military officers who can lead a diverse military force is critical. The interest in having law-enforcement officers who are not just diverse but who can operate effectively within every racial and ethnic community in highly charged situations is critically important. Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical ... These are the considered judgments of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce ... are carried out.”

Justice Elena Kagan, who took part in the case as Solicitor General, has removed herself from the decision. If the remaining liberals win over Kennedy, the result would be a 4-4 split; the University of Texas, having won below, would be the winner. That seems unlikely. Kennedy does not like affirmative action and has never voted to affirm it. On the other hand, he has a horror of the kind of bright-line opinion outlawing affirmative action the conservatives would favor.

On Wednesday, he hinted that the case might benefit from another trip down to the Court of Appeals. No one else—justice or party—seemed enthusiastic about that idea. Nonetheless, the Flying Dutchman may sail again.

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Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.