Affirmative Action, Transparency, and Fisher v. Texas

Affirmative action isn’t exactly an issue that brings people together across ideological lines. It’s a divider, not a uniter. But there is considerable cross-ideological agreement on one point: if we are going to have racial preferences for minorities, it’s better to be transparent about it. In the recent SCOTUSblog symposium on the upcoming Fisher v. University of Texas Supreme Court affirmative action case, both Vik Amar (a defender of affirmative action), and leading critics Rick Sander and Stuart Taylor seem to agree on this point. Amar points out that there is no good reason why opaque racial preferences should be considered more constitutionally permissible than transparent and clear ones, despite some previous Supreme Court decisions suggesting that possibility. Sander and Taylor are more unequivocal in advocating transparency:

The single most important step forward is to adopt a comprehensive system of disclosure. The Supreme Court could mandate that any university that wishes to take the race of students into account in admissions must make its system of preferences (including legacy and athletic preferences) and their consequences transparent both to applicants, to help them make more informed decisions, and to the public, so that researchers, legislators, the media, the courts, and all other citizens can evaluate the accuracy and completeness of the information provided to applicants.

Unfortunately, however, as Amar explains, the most likely outcome of this case is a decision that reduces transparency rather than increases it. That’s because key swing voter Justice Anthony Kennedy is likely to write an opinion striking down the University of Texas program in part because racial “diversity” is better attained through “race-neutral” mechanisms like the Texas ten percent plan, which requires state universities to automatically admit any Texas applicant who was in the top ten percent in their high school class. Although formally neutral, this plan and others like it were adopted for the specific purpose of changing the racial composition of university student bodies. Under this approach, universities are still adopting policies that deliberately favor some racial groups at the expense of others, but doing so in a less transparent way, where the magnitude and purpose of the preferences is harder to assess.

If this is the result of Fisher, it could well turn out to be a Pyrrhic victory for opponents of racial preferences in admissions. As I explained here, racial preferences will not disappear, and may not even diminish in magnitude. But they will become harder to detect and assess. Moreover, policies such as the ten percent plan have a variety of negative side-effects that are worse than those of traditional, explicit affirmative action.

Some conservative defenders of the ten percent plan nonetheless argue that it is morally superior to traditional affirmative action because it does not explicitly consider race as a factor in admission. However, this argument is dubious, for reasons I outlined in my very first post on the ten percent plan, back in 2006:

[I]f 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.

I can understand an argument that consistently opposes all affirmative action on the grounds that the government should not be in the business of favoring some racial groups over others. That’s the position of conservative justices such as Scalia and Thomas. I can also understand the opposite point of view: that affirmative action is justified for the purpose of promoting racial justice or diversity: the long-held position of most liberals. The conservative and liberal justices disagree about the bottom line merits of affirmative action; but they agree that courts should not favor secretive affirmative action policies over transparent ones. By contrast, it’s hard to see much logic behind the view held by key Supreme Court swing voters over the years, such as Justices Lewis Powell, Sandra Day O’Connor, and now possibly Justice Kennedy: that affirmative action preferences are wrong and usually unconstitutional if the government is clear and transparent about what it is doing, but perfectly fine if the preference is pursued through facially “neutral” means, despite the fact that the latter are intended to achieve exactly the same sorts of racially motivated results as the former.

My own view on affirmative action is that I don’t think the Constitution categorically bars affirmative action policies intended to promote compensatory justice, while I am simultaneously much more skeptical of those justified on the basis of promoting “diversity.” But whatever the justification for affirmative action, if the practice is constitutionally permissible at all it is better that it be open and transparent.

UPDATE: In the original version of this post, I accidentally forgot to include a link to my 2006 post outlining the flaws of the Texas ten percent plan. That mistake has now been corrected.