When it was litigated in the lower courts, most observers thought that the most distinctive aspect of Fisher v. University of Texas is that the racial preferences used in its affirmative action plan were grafted on top of the Texas Ten Percent Plan, which guarantees any Texan admission to the UT so long as they were in the top ten percent of their high school class. This plan ensured that the university had a large number of black and Hispanic students, because many high schools are overwhelmingly minority. While formally “race neutral” the Ten Percent Plan was clearly enacted by the state legislature for the purpose of increasing the percentage of African-American and Hispanic students after the Fifth Circuit court of appeals struck down the University of Texas’ affirmative action program in the 1996 Hopwood case. Before the Supreme Court decided Fisher, I worried that it would validate the Ten Percent Plan in the process of striking down the additional preferences placed on top of it. For reasons I discussed here, the Ten Percent Plan is not really race neutral, and is in many ways worse than conventional affirmative action programs.
Today’s Supreme Court majority opinion does not directly address the question of whether the Ten Percent Plan is genuinely race neutral or not. Justice Kennedy emphasizes that:
Narrow tailoring…. requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…, [which] involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications….The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.
But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have [...]