As Ilya notes below, the Fifth Circuit has upheld the University of Texas’s racial and ethnic preference practices in Fisher v. Texas.
There are a number of interesting aspects of Fisher. One is that the University of Texas-Austin had a very “diverse” class without using preferences. Under the university’s previous, race-neutral system, which included the “10 percent” plan, Hispanic and African American students were a total 21.4% of the 2004 freshman class, and Asian Americans made up another 20% or so of the class. This made UT-Austin one of the most ethnically diverse elite universities in the country, and, one might think, substantially undermined the purported compelling interest in using preferences. [The university argued, and the court agreed, that it had the constitutional authority under Grutter to be concerned not simply with overall demographics, but with the demographics of individual programs within the university, and, indeed, individual classes!]
A second interesting aspect of the case is the light it shines on the diversity rationale for preferences in higher education. University officials are forced by Supreme Court precedent to publicly rely on the diversity rationale for affirmative action admissions preferences. But everyone in academia knows that the primary underlying ideological rationale for such preferences has been a desire to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery and Jim Crow. (Like Ilya, I have much more sympathy for this rationale than for the diversity rationale.)
By contrast, the primary beneficiaries of UT’s admissions policies are not African Americans, who are only about six percent of UT students, but Hispanics, who are more than three times as numerous (though African Americans did benefit more proportionally). And, as a brief filed by the Asian American Legal Foundation pointed out, the primary victims are Asian Americans, who constitute a mere 3.5% of Texas population, but about five times that percentage of undergraduate students at UT, and therefore are significantly “overrepresented” by the university’s logic. [And indeed, when the university admits students outside of the 10 per cent plan, and uses ethnicity as a factor, students of Asian ancestry need an average SAT score of 1322 to be admitted, compared to 1193 for Hispanics.]
So UT policy pits ones group composed mostly of post-1965 immigrants and their children against another, with no apparent justification beyond the blunt political fact that Hispanics are a much larger voting constituency in Texas. To the extent that Hispanics disproportionately come from impoverished backgrounds, or from non-English speaking households, UT’s old, race-neutral system already took this into account by encouraging inquiry into an applicant’s socioeconomic background.
Meanwhile, many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach (supported by the Obama Administration), is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent–I know people in all the latter categories–over a dark-skinned child of Vietnamese boat people, solely because the former have Spanish-speaking ancestors.
So, unlike every race/ethnic affirmative action case to reach the Supreme Court, where the underlying conflict has been primarily black-white, Fisher represents the affirmative action of the future, where Hispanic Americans, the largest government-defined minority group in the country, are the primary beneficiaries, and another large and growing group, Asian Americans, suffer the most harm.
It would be fascinating to see this case get to the Supreme Court.