Posted on January 27, 2011
Last week, the United States Court of Appeals for the Fifth Circuit approved, in the major case Fisher v. University of Texas at Austin, an affirmative-action plan for that university that will, in the fullness of time, spell the end of race as a permissible factor in admissions. One arduous step after another, we move closer to the ideal of colorblindness mandated by the Constitution.
Like most states, Texas has an obsession with race-based admissions in its extensive system of higher education. In fact, the state employs two programs in its pursuit of the sacred goal of “diversity”: the Top Ten Percent Law, which allows admission to the state-university system to all students who finish in the top 10 percent of their high school class; and a separate process that considers race among other factors. The second was challenged in Fisher and found to be constitutionally acceptable.
Unfortunately, the Fisher court correctly applied current law on affirmative action in public higher education. In 2003, the U.S. Supreme Court had an excellent opportunity to eliminate the racial discrimination approved decades earlier in the infamous Regents of the Univ. of Cal. v. Bakke (1978). What Bakke essentially decided was that explicit racial quotas were unconstitutional; however, the use of race was permissible as a factor to be considered in university admissions.
Predictably, universities then dishonestly exploited this opportunity to engage in often egregious race-based admissions, relying on diversity as the rationale for plain racial discrimination. These abuses were addressed in 2003 in Grutter v. Bollinger. There, the Court, in a typically scatterbrained opinion by Justice Sandra Day O’Connor, held that race was a “compelling” interest when considered by a university in order to achieve the benefits of a “diverse” student body. (In a companion case, Gratz v. Bollinger, the court, in an opinion by Chief Justice William Rehnquist, rejected the use of race that was too rigid and explicit.)
The University of Texas at Austin carefully developed its program to conform to the approved Grutter plan. Two white applicants who qualified for admission but who alleged they were denied it because of their race, Abigail Fisher and Rachel Michalewicz, brought suit to invalidate the plan. In Fisher, the university was successful in defending its policy of racial discrimination under the law established by Grutter.
In a remarkably powerful concurring opinion in Fisher, Judge Emelio Garza recognized with regret that the Texas approach to racial discrimination is safe under Grutter. The problem is that Grutter is terrible law, an abandonment of the principle of racial neutrality that the Constitution mandates: “Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination,” Garza wrote. “Changing the color of the group discriminated against simply inverts, but does not address, the fundamental problem: The Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the court’s return to constitutional first principles.”
And a return to first principles appears to be in order when Fisher reaches the United States Supreme Court. The politically driven fatuity of O’Connor will be thoroughly rejected by her estimable successor, Justice Samuel A. Alito, Jr. The cancer of race will finally be excised from admissions.
Judge Garza eloquently wrote of the problem of affirmative action in this context:
“For the most part, college admissions is a zero-sum game. Whenever one student wins, another loses. The entire competition, encouraged from age 5 on, is premised on individual achievement and promise. It is no exaggeration to say that the college application is 18 years in the making and is an unusually personal experience: The application presents a student’s best self in the hopes that [his] sustained hard work and experience to date will be rewarded with admission. Race-based preferences break faith with this expectation by favoring a handful of students based on a trait beyond the control of all.”
That is the principle of the American constitutional tradition that will finally be vindicated when the damage wrought by the diversity hustle sanctioned in Grutter is undone. The future is bright for those committed to equal justice.
*Posted on http://www.nj.com