George Will on Fisher v. Texas

George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:

The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.

In the 1978 Bakke case concerning preferences in a medical school’s admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping student bodies to achieve viewpoint diversity. Thus began the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws.

But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.

Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever….

But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.

The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.

“Academic mismatch” causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind….

A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.

There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: “Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are.” This is particularly so regarding science and engineering….

In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the “diversity” rationale for racial preferences: “Minority students are not public utilities.”

The possibility that many minority students are actually harmed by “diversity”-based affirmative action is a further point of tension between the diversity rationale for racial preferences and the compensatory justice rationale, a subject I have emphasized in many previous posts (e.g. here, here, here, and here). I previously blogged about Fisher v. Texas in this post. Co-blogger David Bernstein commented here. If the goal of racial preferences is promoting “diversity,” then it does not matter much whether minority students are potentially harmed by them. If, on the other hand, the goal is compensating groups victimized by major historic injustices, it matters a great deal.

NOTE: As I have noted in my previous post on Fisher, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter v. Bollinger and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him.

In addition, my wife is a special assistant/counsel for Gail Heriot, one of the coauthors of the brief by the three members of the US Commission on Civil Rights, which Will references. I should emphasize, however, that I have espoused the same views on affirmative action as I do today since long before she took that job, and indeed since before we met, as my earliest posts on the subject show. For about a decade now, I have believed that government-sponsored racial preferences might, at least in principle, be justified for purposes of compensatory justice, but not for diversity purposes. I am, however, pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives.

UPDATE: The Sander-Taylor amicus brief is available here, and the brief of the three USCCR commissioners here.

UPDATE #2: David Schaub strangely accuses me of advocating a “one-size government mandate” banning affirmative action. This is strange because I have always taken the view that “private universities should have the legal right to practice as much affirmative action as they want.” I did not discuss this aspect of the issue in this post, since Fisher is a case about government-sponsored affirmative action at state universities. Schaub suggests that public and private universities are essentially the same. In some respects they are. But state universities are still public property and using public property for the purpose of promoting racial preferences raises moral, political, and constitutional issues that differ from those at private institutions. Similarly, it is not inconsistent to support a legal regime under which private universities, but not public ones can promote a particular religion. Even with respect to state institutions, I do not believe that affirmative action is categorically unconstitutional. But there is good reason for courts to view it with suspicion and subject it to tight scrutiny.

Schaub makes a more defensible point in claiming that the critique of “mismatch” is paternalistic. Mismatch would be less of a problem if universities were more forthcoming in telling affirmative action admittees the risks they run. But most are not. Moreover, when it comes to public universities, concern about mismatch is not just a concern about the students who get preferences. It’s also a matter of wasting public funds on students who are likely to perform very poorly at the institutions to which they are admitted, whereas they might have done better at schools more in line with their qualification levels.

Finally, Schaub suggests that mismatch concerns aren’t raised in nonracial contexts, such as legacy preferences. I’m no fan of legacy preferences. But they rarely involve academic qualifications gaps anywhere near as large as those in some affirmative action programs.