On Oct. 10, when the U.S. Supreme Court hears oral arguments in the case of Abigail Noel Fisher v. University of Texas at Austin, et al, “affirmative action” again will become a hot topic of discussion. Here’s hoping that the justices’ decision results in eliminating the bad experiment of race preferences by government actors in education.
Affirmative action is like a trendy parenting tactic for sibling rivalry that you read about online and try on your kids. It sounds like an obvious cure-all, but it doesn’t work, it’s exhausting to enforce, and you spend more time arguing with your spouse (and the kids) about why they have to go along with it than you do reaping the intended benefits of peaceful, mutually-supportive kids.
Of course, as most parents know, the fairest and simplest way to prevent truly entrenched rivalries between siblings is to treat them as equals. If you can do that, making sure to enforce a zero-tolerance policy of aggression or destructiveness, you’re well on your way to raising fair-minded, adaptable young people. Too bad things aren’t simple in the world of governmental race preferences. Nothing demonstrates that reality as well as the Grutter and Gratz decisions of 2003. In Grutter, consideration of law school applicants’ race by admissions officers was justified on the grounds that the school had a laudable goal (educational diversity) and a sufficiently obscure means of reaching it — never mind constitutional “compelling interest” or “narrow tailoring.”
In Gratz, using a system of fixed points assigned to particular races on applications for undergraduate admission was not justified, however; the race points just weren’t obscure or esoteric enough. The message to education administrators and government bureaucrats was transmitted immediately: Forget equal treatment (so non-proactive … so un-modern!).
The University of Texas at Austin has certainly embraced the challenge to build a better race preference. In 1996, the Fifth Circuit declared its first race-conscious admissions program unconstitutional. Then, the Texas Legislature took up the issue of promoting racial diversity on the state’s college campuses and passed the Top 10 Percent Law. Talk about fair and simple: Under the Top 10 Percent statute, high school graduates in Texas who finish in the top 10 percent of their class are guaranteed admission to a state university or college, regardless of whether they went to a low-performing or well-funded, rural or urban, majority-white or majority non-white school. It was a race-neutral program designed to recruit the highest-achieving students from every region of Texas to become educated at state-funded universities, and it worked well. The Top 10 Percent statute did not affect Abigail Noel Fisher. Unlike 75 percent of the incoming freshmen at UT-Austin, she did not graduate in the top 10 percent of her high school class. She applied to UT-Austin’s nursing program to fill one of the seats for the remaining 25 percent. Because of UT-Austin’s popularity and selectivity, she already faced stiff competition. After Grutter, UT-Austin had added another degree of difficulty, by layering onto the Top 10 Percent statute a matrix of factors, including race, designed to help them determine which composite of applicants would let them achieve classroom diversity. UT-Austin now seeks “deference” to arrange persons in particular classes to achieve its desired, though undefined, distribution of students by race — classroom by classroom, if “necessary.” Under that scheme, Abigail Noel Fisher was rejected for admission. One can’t blame her for asking why Grutter’s concern with educational diversity should extend to micro-sorting scholars into classroom seats by race, at the expense of colorblind fairness. In short, the trendy parenting technique has resulted in unequal treatment.
In the Grutter opinion, Supreme Court Justice Sandra Day O’Connor wrote that race-based admissions no longer will be needed in 25 years. That was 10 years ago. The UT-Austin “classroom diversity” policy, while novel, tears at the delicate fabric of constitutional color-blind equality that O’Connor hoped was on its way to becoming whole cloth.