Why Fisher v. Texas Might Turn Out to be a Pyrrhic Victory for Opponents of Racial Preferences

In general, I am not a fan of the “diversity” rationale for affirmative action, and I have considerable sympathy for plaintiffs’ position in Fisher v. Texas, the University of Texas affirmative action case that the Supreme Court recently agreed to hear. However, in this recent Slate article, Richard Thompson Ford, a leading defender of affirmative action, puts his finger on one aspect of the case that gives me some pause:

Here is where the one potentially important difference between Grutter [v. Bollinger] and Fisher comes in. Unlike the University of Michigan Law School, the University of Texas had eliminated race-based affirmative action and achieved some measure of racial diversity without it, using a race neutral “10 percent plan,” in which the university accepted the top 10 percent of students from every school district in the state. But after Grutter reaffirmed the constitutionality of affirmative action, U.T started using racial preferences in addition to the 10 percent plan. The Fisher plaintiffs argue that this was an error: Because the 10 percent plan produced a diverse student body, U.T. didn’t need racial preferences too. So Justice Kennedy [the key swing voter on the Court] might now decide that race-based affirmative action is unconstitutional whenever race-neutral policies, like the 10 percent plan, alone can further diversity…..

Suppose the conservatives have their way and Court does bar any consideration of race in admissions. Would this really settle the question either? Champions of class-based affirmative action like the Texas 10 percent plan. But if the end goal for such a scheme is racial diversity, isn’t it just as suspect, constitutionally speaking, as an explicitly race-conscious policy?

If the Court rules that explicit race-based affirmative action is unconstitutional where “diversity” can be achieved by facially neutral plans like the ten percent plan, the result is likely to be a raft of admissions policies that appear race-neutral, but actually are deliberate attempts to achieve a particular racial balance by relying on admissions criteria that correlate with race (which is the reason why the ten percent plan was enacted in the first place, after a federal court invalidated the University of Texas’ racially explicit affirmative action policy in 1996). In this way, racial preferences in admissions will not be eliminated, but will merely be driven underground and become less transparent.

In this 2006 post, I explained why the Texas ten percent plan is actually much worse than traditional affirmative action, on a variety of grounds. And if you believe that racial preferences in admissions are unconstitutional, you should find the ten percent plan and other similar policies equally objectionable:

But if it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially “neutral” means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong [and unconstitutional] for the same reason that Jim Crow laws were wrong, then “facially neutral” affirmative action systems such as the Texas ten percent plan are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

If the Supreme Court strikes down explicit race-based affirmative action but endorses the ten percent plan and other similar “race-neutral” subterfuges, we might end up with the worst of both worlds. Racial preferences in university admissions would not disappear. They would instead become less transparent and more costly to society by creating more perverse incentives like those of the ten percent plan.

Obviously, the Court need not adopt this kind of reasoning if it chooses to strike down the Texas plan. It could instead simply rule that admissions policies that deliberately seek to advantage some racial groups over others are subject to strict judicial scrutiny regardless of whether or not they explicitly mention race. But I suspect that Justice Kennedy, and possibly some of the other conservative justices, might instead point to the ten percent plan as a superior alternative to racially explicit affirmative action policies – thereby incentivizing other state universities to adopt admissions policies that seek racial balancing while pretending to be race-neutral on the surface.

UPDATE: I have reworded a few parts of this post for clarity.

UPDATE #2: Some commenters are wrongly suggesting that I’m arguing that the ten percent plan is unconstitutional merely because it benefits one racial group more than another. I am not claiming any such thing. The constitutional problem with the ten percent plan is that it is a deliberate effort to help some racial groups at the expense of others. Intentionally structuring an admissions policy for the purpose of advantaging a particular racial group (and disadvantaging others) is different from an unintended incidental effect. Virtually all government policies have disparate effects on some racial or ethnic groups. But, at least in this day and age, there are many fewer that are deliberately designed to advantage some racial groups at the expense of others.

To extend the Jim Crow example, a literacy test for voting is not unconstitutional merely because fewer blacks pass the test than whites (though, today, it would still violate the Voting Rights Act). What made such tests unconstitutional, at least in the South, is that they were intentionally enacted for the purpose of excluding blacks from the ballot.

Just as one can imagine a ten percent plan adopted for entirely nonracial reasons, one could also imagine a literacy test enacted for reasons having nothing to do with race (e.g. – because literate voters are likely to be more knowledgeable than illiterate ones). In reality, however, both the ten percent plan and most literacy tests were enacted primarily for racial reasons. That makes them constitutionally suspect.