Stuart Taylor, Jr. is a Washington writer and coauthor, with Richard Sander, of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

Thirteen years to the day after the Supreme Court said “[w]e expect that 25 years from now, the use of racial preferences [in university admissions] will no longer be necessary,” the Court on Thursday paved the way for perpetuating such preferences for many decades, perhaps centuries.

Unless the next two Supreme Court appointees are strong opponents of racial preferences — a most unlikely prospect — the Court’s role since the 1978 Regents of the University of California v. Bakke decision as a modest restraint on use of such preferences is at an end.

To be sure, Justice Anthony Kennedy’s opinion for the four-three majority, upholding a racial-preference plan at the University of Texas, did not say in so many words that the Justices will bless virtually any racial preference plan that comes before them. And he did include perfunctory lines about the need for “strict scrutiny” of racial preferences.

But barring a surprise Trump win in the presidential election (which I would find even more distressing than the Court’s decision), few if any Court-watchers expect any significant restraint on racial preferences to come from the Justices after this decision, Fisher v. University of Texas.

“Considerable deference is owed to a university,” Kennedy wrote, “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

He minimized as “a factor of a factor of a factor” the complex but clearly large role of race. Justice Samuel Alito, in a fifty-one-page dissent that he summarized from the bench, said more candidly that the decision amounted to “blind deference” to the “[c]onsideration of race [that] pervades every aspect of UT’s admissions process.”

Henceforth, as Alito asserted, “Courts will be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” From the bench, Alito added: “This is affirmative action gone berserk.”

History has proved that — despite lopsided, longstanding public disapproval of racial preferences — the universities and powerful special interest groups are committed to continuing them without end. And almost all legislative bodies go along, in part for fear of being trashed in the media as racists if they object.

(To be sure, California and a handful of other states have prohibited state-sponsored racial preferences by ballot initiatives — which universities have largely circumvented by using various proxies for race in their admissions process.)

Kennedy — who had never before voted to uphold a racial preference — abandoned or gutted a list of rules limiting such preferences (noted below) that previous Supreme Court precedents had announced, going back to Bakke.

Racial integration of our universities is, of course, a good thing. And universities have achieved considerable racial diversity through means such as the Texas “Top Ten Percent Plan.” But engineering diversity through large, overt racial preferences aggravates racial stereotypes and resentments and often leads to social isolation, academic struggle, and understandable bitterness among members of the preferred groups.

The racial-preference fingers on the scales of the admissions processes at Texas and across the country are far heavier than one might imagine from media reports.

The best available statistics from the University of Texas suggest that the black students admitted under the overt racial preference plan (as distinguished from the facially race-neutral Top Ten Percent plan) have, on average, had SAT scores as much 450 points lower than Asian-American admittees, and 390 points below whites, out of a total possible score of 2400.

And according to a 2009 book by Thomas Espenshade and Alexandra Walton Radford (both supporters of racial preferences), who compiled academic data from a sample of highly selective, mostly private colleges, black applicants received “an admissions bonus . . . equivalent to 310 SAT points” relative to whites and 450 points relative to Asians on a 1600 point scale.

For example, a “black candidate with an SAT score of 1250 could be expected to have the same chance of being admitted as a white student whose SAT score is 1560, all other things equal.” There are similar racial gaps in admitted applicants’ high school grades.

These differences in academic preparation lead directly to vast gaps in academic achievement among racial groups at selective universities including Texas, and to rude and depressing shocks for black and Hispanic students who find themselves struggling academically after being assured that they will do well. Richard Sander and I demonstrated this in a 2012 book, Mismatch.

For example, numerous studies by respected scholars have shown that disproportionate percentages of preferentially admitted black freshmen who aspire to major in science and other tough subjects are forced by bad grades to move to softer majors – and that they would be more likely to achieve their ambitions had they gone to less elite schools for which they were better qualified.

Another study shows that students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.

The Court’s decision is dispiriting for those of us who do not wish to see desirable positions in our society increasingly allocated by race, into the indefinite future, and who agree with the Court’s repeated assertion — most recently by Kennedy himself, just three years ago, in an earlier ruling in the Fisher case — that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.”

The Fisher decision is of course welcome to the Obama administration and its allies, who have largely abandoned previous assurances that racial preferences would be a mere temporary deviation from merit-based admissions.

Indeed, then-Attorney General Eric Holder announced in 2012 that “I can’t actually imagine a time in which the need for diversity” — and, he implied, for racial preferences — “will ever cease.”

Among the previously articulated Supreme Court restraints on racial admissions preferences that Kennedy’s decision implicitly cast aside are the rule that “outright racial balancing . . . is patently unconstitutional.” In Fisher, Kennedy upheld a Texas plan that was clearly designed to bring racial percentages within the student body more into line with the state’s demographics. That’s what outright racial balancing is.

The decision also cast aside, without quite saying so, previous holdings that “a race-conscious admissions program [may] not unduly harm members of any racial group.”

Even if the Texas preference plan does not “unduly” harm whites (a debatable proposition), it discriminates flagrantly against Asian-Americans, a fact ignored by the majority and demonstrated by Alito. It also harms a great many of the African-American and Hispanic-American supposed beneficiaries, as discussed above.

Kennedy went through the motions of upholding yet another Supreme Court rule which he in fact gutted: that universities have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice” to provide adequate diversity. The university demonstrated no such thing, as Alito devastatingly detailed.

And, of course, the new decision makes a dead letter of the Court’s caveat in its 2003 Grutter v. Bollinger decision that equal protection prohibits “enshrining a permanent justification for racial preferences.”

Again, this is not to say that Kennedy’s opinion — for liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor — overtly cast aside the Court’s previous holdings. (Chief Justice John Roberts and Justice Clarence Thomas joined the dissent. Justice Elena Kagan was recused.)

Rather, Kennedy interpreted them into insignificance by accepting every argument made by the university, no matter how implausible or inconsistent with the same university’s previous arguments in the same case.

Not to mention Alito’s point that “UT’s crude [racial] classification system is ill suited for the more integrated country that we are rapidly becoming.”

Or his additional point that UT’s emphasis on preferences for socioeconomically well-off black and Hispanic students — as distinguished from the mainly disadvantaged black and Hispanic students admitted through the Top Ten Percent Plan — flouts the “purpose of helping the disadvantaged” that was originally the heart of affirmative action.

It goes without saying that enduring racial and socioeconomic inequality causes deep wounds in our social fabric, and that educational gaps are at the heart of these dire problems. But the evidence shows that large racial preferences make things worse, not better, while neglecting our most promising working-class and low-income students and papering over the real problem.

That problem is the large racial gaps in early academic achievement symbolized by the undisputed fact that the average black twelfth grader has acquired no more academic learning than the average white eighth grader.

The only real solution is to improve the education received by these children from birth through high school. Every bit of energy that is spent on sustaining a failed system of racial admissions preferences would be far better invested in teaching kids enough to make them academically competitive when they arrive at college.

But the Court’s decision appears likely to facilitate the continued use of racial admissions preferences as an excuse for continued neglect of the crippling effects of bad K-12 education on many black and Hispanic children.

Posted in Fisher v. University of Texas at Austin, Symposium on the Court's ruling in Fisher II

Recommended Citation: Stuart Taylor, Symposium: Extrapolating from Fisher — Racial preferences forever, SCOTUSblog (Jun. 23, 2016, 4:42 PM), http://www.scotusblog.com/2016/06/symposium-extrapolating-from-fisher-racial-preferences-forever/