The activist judges of the United States Supreme Court, by choosing last month to take up Fisher v. University of Texas at Austin, have decided to put affirmative action back on the national agenda. The fragile five-vote coalition that upheld race-based admissions policies at the University of Michigan less than a decade ago has been dispersed by retirement. Now the court's conservative majority seems poised—stare decisis be damned—to upend decades of established law and prohibit colleges from creating classes as they see fit.
There is little doubt as to how Chief Justice John G. Roberts Jr. will vote. This is the man who, in Parents Involved in Community Schools v. Seattle School District No. 1, failed to see any distinction between the vicious state-sponsored racism outlawed by Brown v. Board of Education and present-day policies designed to give minority children a better education. Trying to be clever, or at least memorable, Roberts wrote that "the way to stop discrimination on the basis of race is stop discriminating on the basis of race." Perhaps somewhere in the court's vast law library there is a dictionary explaining that the word "discriminate" has two definitions, only one of which is malign.
So we are left with the prospect of a world where colleges are free to offer preferences to legacies—the last vestige of inheritable aristocratic privilege in modern society—and the children of generous donors, but not to members of underrepresented racial and ethnic groups. In other words, affirmative action for rich white people will be legal, while affirmative action for low-income minority students will not. This is justice?
At the same time, there's something dispiriting about the way affirmative action has come to be the only argument that matters when it comes to equity, race, and higher education.
The dispute that the court will consider later this year focuses on admissions policies at the flagship University of Texas campus in Austin. Most students come to the campus through a policy that grants automatic admission to those who graduate in the top 10 percent of their high-school classes. (The state recently modified the policy to cap the number of "top 10 percent" students accepted to 75 percent of the slots available to in-state applicants.)
The plaintiff in the Fisher case, who is white, argues that the university may not use race as an admissions criterion because the 10-percent policy, which is race neutral, already affords the university a sufficient level of racial diversity. The case only concerns how UT considers the remainder; those affected will be, by definition, among the relatively small number of students of any race who are qualified to attend a highly selective university.
Meanwhile, most minority students in Texas, where more than half of high-school graduates are black or Hispanic, will be unaffected by the decision because they will attend institutions that admit most or all students who apply. And what kind of institutions will those be? According to my analysis of U.S. Department of Education data, public two- and four-year colleges and universities in Texas collectively spend almost $1,000 more per white student on instruction, academic support, and student services than they spend on students from underrepresented minority groups.
That's because minority students in Texas disproportionately attend less selective institutions, and Texas, like most states, has constructed a higher-education system in which the most selective institutions that enroll the most privileged students are given the most money. When this happens in other walks of public life, gigantic lawsuits generally result. In higher education, we call it "meritocracy."
This is not to say that minority students suffer no discrimination earlier in their education. In Texas, school districts that enroll large numbers of black and Hispanic students receive hundreds of dollars less per pupil than predominantly white districts. Minority children in Texas are also more likely to be taught by inexperienced, underqualified teachers. This, too, is prevalent nationwide.
It is this kind of discrimination that offers the strongest justification for affirmative action. Not historic injustices that have since been righted but discrimination that is happening right now, in public schools across the country.
Yet the twists and turns of affirmative-action jurisprudence have disconnected the policy from its compensatory roots. Justice Sandra Day O'Connor's majority decision in the 2003 University of Michigan case, Grutter v. Bollinger, allows colleges to use race-based admissions policies solely in the name of diversity, on the theory that experiencing difference is an essential part of going to college. "Nonminority students," she wrote, will benefit from encountering "a variety of viewpoints among minority students." In other words, affirmative action is only justifiable on the grounds that it's good for white people. That's just weird, and more than a little distasteful. As the legal analyst Dahlia Lithwick put it at the time, "schools are not petting zoos."
And while the higher-education community's staunch support for affirmative action is admirable in and of itself, the primacy of the issue allows many colleges and universities to get off cheap when it comes to social justice. Most colleges are never more diverse than on the first day of class. Institutions that congratulate themselves on admitting minority students often look a lot whiter four years later, at graduation, after they've failed to help their minority students learn and earn degrees.
Elite colleges too often meet their diversity goals by enrolling minority students from privileged backgrounds while offering few spots to poor students of any kind. Meanwhile, some appear to have dusted off their "don't admit too many Jews" playbooks from the 1920s in order to limit Asian enrollment, again on the grounds of "diversity," since, to the white people who run things in this country, people of Chinese, Japanese, Korean, Cambodian, Thai, Malaysian, Vietnamese, Filipino, and various other origins apparently all kind of seem the same.
Somehow, none of this merits final judgment from the highest court in the land. Instead, we'll be subject this year to a great many loud, rehearsed, and unenlightening arguments from people who have long since been taught what to think about affirmative action based on their larger ideology. And regardless of how the court rules, most of the serious problems facing minority students in American higher education will remain to be solved.