Next month the Supreme Court will hear arguments in Abigail Fisher v. University of Texas at Austin, one of the most important cases this term. In 2008 Fisher, a white high school senior in Texas, applied for admission to the university and was turned down. She sued the school, claiming that its admissions procedures discriminated against her on the basis of race in violation of the Fourteenth Amendment’s equal protection clause.
Fisher lost in the district court and then in the Fifth U.S. Circuit Court of Appeals. But the Supreme Court, with Justice Anthony Kennedy writing, said the circuit court had been too deferential to the university’s race-conscious admissions process. The High Court sent the case back to the Fifth Circuit, asking for a more rigorous review. When a three-judge panel—over the dissent of Judge Emilio Garza—ruled in favor of Texas, Fisher asked the Supreme Court to grant review in the case again, and in June it did.
Judge Garza certainly provided a stringent review—doubtless closer to what the Kennedy majority had in mind. Strict scrutiny, he explained, is a doctrine the courts have developed to enforce the equal protection clause. And under strict scrutiny, he said, a public “university’s use of racial classifications is constitutional only if necessary and narrowly tailored to further a compelling governmental interest.” For Texas as for other competitive schools with race-conscious admissions, the interest is the attainment of a diverse student body that includes “a critical mass” of minorities. And yet, wrote Garza in his dissent, Texas has not defined “critical mass” in any objective manner. “Accordingly, it is impossible to determine whether the [school’s] use of racial classifications in its admissions process is narrowly tailored to its stated goal—essentially, its ends remain unknown.” And: “This is the crux of this case—absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”
The majority’s review of the admissions process was, by comparison, superficial. And its decision rested on Supreme Court precedents that the judges described as “settled” but which the Fisher litigation has exposed as anything but. It will not be surprising if the oral argument in Fisher II is in certain respects a repeat of that in Fisher I, with justices questioning the university’s lawyers about the meaning of “critical mass.” Not incidentally, in the 2003 Michigan affirmative cases Justice Kennedy described critical mass as “a delusion used . . . to mask [an] attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas”—quotas being illegal. It will not be surprising if the Court again rules against the university.
Fisher II is a court case, but it offers the rest of the country an opportunity to consider the wisdom of race-conscious admissions at competitive institutions of higher education. How about that as a topic for a “national conversation”?
As we see it, the basic problem with racial admission policies is the injury they cause. Necessarily (because seats are limited), they discriminate against applicants who are not of the favored race or ethnic background (usually black and Hispanic). The injury is real, and increasingly Asian Americans are among those denied seats.
Yet this is not the only kind of injury these policies cause. Consider the ostensible beneficiaries of preferences, who unlike the plaintiffs are publicly invisible. Often extended large preferences, they get into better schools than they would under a race-neutral admissions process. The deeper truth, though, is that they have been academically “mismatched” in those schools, as Richard Sander and Stuart Taylor Jr. explained three years ago in their book Mismatch.
Drawing upon extensive research data, Sander and Taylor showed that mismatched students often suffer adverse effects. In particular, they tend to learn less than if they were in schools where their level of academic preparation was comparable to that of most other students. Likewise, mismatched students tend to receive lower grades, become academically discouraged, switch to less competitive fields of study (from math to psychology, for example), and even drop out of school. The problem, obviously, is not with the mismatched students, who would do well in schools whose students have academic credentials similar to their own. The problem rather is a system of preferences that perversely hurts the students it’s intended to help.
It’s past time higher educators decided to quit that system and began treating applicants the same, without regard to race or ethnicity. Maybe the outcome in Fisher II will shove them in that direction. Perhaps some university president will even have the courage to stand up for what is right. Unlikely, since it’s higher education we’re talking about. But one can hope.
