Mike Kueber's Blog

June 25, 2013

Fisher v. Texas finally decided anticlimactically

The U.S. Supreme Court finally decided its affirmative-action case, Fisher v. University of Texas.  Unfortunately, they punted on the decision by instructing a lower court to reconsider its previous decision.  In this reconsideration, the lower court is supposed to hold the University to a much heavier burden for justifying race-influenced admissions.

Because of this holding, both sides can claim victory.  Liberals like the New York Times and the San Antonio Express-News editorial boards are thrilled (or relieved) that affirmative action has been allowed to live at least another day, while conservatives are encouraged that all future cases with be subjected to most difficult equal-protection analysis – i.e., strict scrutiny.

After reading an article in the SA Express-News (whose reporting is scarily similar to its editorial page), I submitted a comment suggesting that this legal issue is a sham because the liberals are pretending to pursue diversity while in reality they are pursuing racial balancing.  The sham is required because the Bakke decision by the Supreme Court in 1978 said that racial balancing was illegal but diversity was not.

Shortly after making the comment, another Express-News reader, Daniel Miller, suggested that I was mistaken.  He accused me of falsely charging the universities of seeking racial balance when, in fact, they were purely pursuing diversity.  He also accused me of failing to define racial balancing.

With this prompt from Miller, I googled the difference between racial balancing and diversity, and was taken to an interesting website that contained an excellent description of this issue.  The website contains several quotations from legal decisions relating to racial balancing:

  • Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” 
  • Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decision-making such irrelevant factors as a human being’s race’ will never be achieved.”
  • An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.

After responding to Miller’s comment, I decided to read the Fisher decision again, and while doing that, I noticed the concurring opinion of conservative Justice Thomas and the dissenting opinion from liberal Justice Ginsberg.  Justice Thomas described the stark difference between diversity and racial balancing:

  • Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” (“The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional.”  (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids”). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

Justice Thomas also provided interesting information relating to the extent of racial discrimination at UT in admitting its class of 2009:

  • In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.

Liberal Justice Ginsberg admitted that all of this talk about diversity was merely camouflage:

  • Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.  As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.”  Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage….  It is race consciousness, not blindness to race, that drives such plans.  (Footnote – The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.)  As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

A few weeks ago, I posted an entry about two dramatically different meanings of “diversity”:

  1. In the academic world, the concept of diversity encompasses acceptance and respect. It means understanding that each individual is unique, and recognizing our individual differences. These can be along the dimensions of race, ethnicity, gender, sexual orientation, socio-economic status, age, physical abilities, religious beliefs, political beliefs, or other ideologies.  It is the exploration of these differences in a safe, positive, and nurturing environment. It is about understanding each other and moving beyond simple tolerance to embracing and celebrating the rich dimensions of diversity contained within each individual.
  2. In the real world, however, people know that the term diversity was created to replace the politically-incorrect term affirmative action, which was created to replace the even more politically-incorrect terms of quotas and reverse discrimination.  In the real world, a person who refers to diversity is not talking about recognizing individuals as unique, but rather is talking about expanded  minority (and possibly gender) involvement.

In the post, I also criticized a local Hispanic leader, Lionel Sosa, who recently attempted to further obfuscate reverse discrimination by lobbying in favor of something he calls “inclusion.”  In a column in the Express-News, Sosa argued that Republicans must:

  • Add “inclusion” to our core principles. This means top-to-bottom inclusion utilizing all channels; party leaders, campaigns, candidates, think tanks, office holders, bloggers, strategists, talk show hosts, the media, the party faithful, political consultants, pollsters, faith community, etc.
  • Ban the word “outreach.” Outreach is tokenism. Inclusion means having talented Latinos present at every level.

Sosa’s “inclusion” seems very similar to quotas and racial balancing.  Coincidentally, an article on affirmative-action in the NY Times around that time included advocates using the term “inclusion,” while noting, “There is diversity fatigue. We could fall backwards very quickly.”   To its credit, the article described a widely-acknowledged side-effect of affirmative action:

  • A black associate at one Houston firm, who requested anonymity so as not to jeopardize his chances of making partner, used a familiar legal term to describe his unease at work, saying he sometimes felt there was a ‘rebuttable presumption’ that he was there to fill a quota and was not as qualified as white colleagues.

Obviously, this moral/political issue will be with us for many years to come.