By Abigail Thernstrom - The American
Our America Initiative Advisory Council Member for Civil Liberties
California Democrats have proposed a new referendum that would reinstate racial preferences in higher education, but the state's Asian Americans are rebelling.
What a hash the Supreme Court has consistently made in decisions involving race. The latest example is Fisher v. University of Texas, Austin. The case, which involved affirmative action in higher education, sat in the Supreme Court docket for an unusual nine months last year, at the end of which the Court issued an opinion that did almost nothing to advance the decades-long debate over racial preferences. It stamped its foot and said judges must more rigorously scrutinize racial sorting — admissions determined in part on the basis of racial or ethnic identity. But that was neither a new command nor one with any real legal teeth. And thus the decision left the matter of the constitutionality of racial double standards in higher education still open to debate.
Fisher did very little to curtail the freedom of universities to consider the race of applicants — to the great disappointment of those of us who had hoped for a new era in which race would be left out of the admissions calculus. And a new legal challenge to race-conscious admissions decisions is unlikely to come along in the near future. Fresh litigation would require a plaintiff with access to sufficient resources to let another case play out over many years, and four justices on the Supreme Court would have to be willing to revisit a racial issue for which it undoubtedly has little appetite.
But the courts are not the only arenas in which the issue of affirmative action in higher education has been playing out. Voters in California, Arizona, Washington, and a handful of other states have passed constitutional amendments that limit the use of race in the public sphere, although the constitutionality of such referenda is now the question in another case that awaits decision by the Supreme Court before the end of the current term.
Of much greater consequence, California Democrats have been attempting to put a new referendum on the ballot this November that would reinstate the racial preferences that had been banned by a statewide vote in 1996. California is overwhelmingly Democratic, and effective opposition seemed highly unlikely. But suddenly, astonishingly, the political winds have shifted. The state’s Asian Americans, 79 percent of whom voted for Obama in 2012, are rebelling, because preferences for blacks and Hispanics reduce the number of classroom seats for which Asians can compete.
Asians, in other words, are on the losing end of racial preferences. Why haven’t they long fought such racial preferences? Historical turning points are often a mystery, and this is one of them. The importance of this development cannot be overstated. The Hispanic speaker of the California State Assembly has been forced to table the racial-preferences measure. A grassroots movement has included more than 100,000 signatures on a petition, countless angry posts on email listservs, and a flood of calls to lawmakers. The effort to restore preferences for the two preferred minority groups has come to a screeching halt.
A new legal challenge to race-conscious admissions decisions is unlikely to come along in the near future.
No one foresaw a political movement that had the potential to diminish the importance of the Fisher case. Many of us who had hoped that the Supreme Court would put an end to racial favoritism with Fisher read the Court’s decision as a real downer. The Court, when it speaks, usually has the last word. Fisher was important, its outcome significant. It had been 14 years since Grutter v. Bollinger, the last time the constitutionality of racial preferences in higher education had been examined, and the outcome in 2003 had been a setback to the anti-preferences cause. The high court had found that racial diversity was a compelling state interest that justified the use of race in making admissions decisions. Colleges and universities could continue to admit students using racial double standards.
The Supreme Court’s 2003 decision infuriated opponents of race-driven public policy who believe that judging people by the color of their skin is morally abhorrent. And thus, after the Court’s 2003 decision they began to search for a new plaintiff. Abigail Fisher had applied to the University of Texas, Austin (UT) and was rejected. She had lost out to much less qualified blacks and Hispanics who were the beneficiaries of racial preferences, she believed. And she was happy to sue the school on Fourteenth Amendment equal protection grounds. UT’s use of race to sort through applications was constitutionally suspect, Fisher’s lawyers argued; it failed to meet the test of legitimacy spelled out in prior affirmative action decisions.
A history of affirmative action cases
The line of prior decisions on affirmative action starts in 1978 with The University of California v. Bakke. Distributing burdens and benefits on the basis of racial identity could only survive constitutional scrutiny if “narrowly tailored” for a “compelling state interest,” the Court said. Twenty-five years later, in Grutter v. Bollinger, which involved racial preferences at the University of Michigan (UM) law school, Justice Sandra Day O’Connor, writing for the Court, signed off on race-based admissions provided the school engaged “in a highly individualized, holistic review of each applicant’s file.” The use of race was permissible as long as it was simply one factor in a “flexible assessment of applicants’ talents, experiences, and potential.” She pretended such assessments were the rule at UM; in fact the record showed that the school clearly trafficked in racial double standards. But never mind; deception on the issue of race was judicial business as usual.
Abigail Fisher, in suing UT, lost in the district (trial) court, lost again in the Fifth Circuit Court of Appeals, and then turned to the Supreme Court, which issued its opinion in June 2013. The high court’s disappointing decision was not the end of the road. The Court, dissatisfied with the Fifth Circuit’s analysis, sent the case back down for further argument. And — as of this writing, another nine months later — there it remains.
Voters in California, Arizona, Washington, and a handful of other states have passed constitutional amendments that limit the use of race in the public sphere.
What was the Supreme Court doing in the nine months that elapsed between the argument and the decision? Trying to find its way, it seems. In race-related cases, the Court has a long history of wandering in the dark, trying to get its footing. Its difficulty in doing so is understandable. Affirmative action cases raise fundamental normative questions about American society and the place of ethnic and racial groups in it. Judges struggle to answer them within the narrow confines of legal precedents. In so doing, they make definitional assumptions about group identity that have now been questioned by Asian Americans in California, who see their interests as quite distinct from those of blacks and Hispanics.
Those problematic assumptions date back to the first of the higher education affirmative action cases. In its 1978 landmarkBakke decision, the Court recognized the desire for “a diverse student body” as a “compelling interest” that justified the use of racial identity in making admissions decisions. But what did “diversity” mean? When the issue of racial preferences came back to the Court a quarter century later, diversity was defined as a “critical mass” of non-Asian minorities. Perhaps some UM administrators knew precisely what that meant, but in deciding Fisher ten years later the high court certainly did not. In fact, the oral argument in the case makes for rather amusing reading.
The oral argument in Fisher
Justice Sonia Sotomayor asked Fisher’s attorney, Bert Rein, what a critical mass was. He hadn’t a clue. She didn’t give up. “At what point does a district court or a university know that it doesn't have to do any more?” she asked some minutes later, to no avail. Justice Samuel Alito was equally bothered by the question: “Do you understand what the University of Texas thinks is the definition of a critical mass? Because I don't.” Rein replied, “They have no definition.” That was no doubt true. The university couldn’t say it was aiming for a certain number of blacks or Hispanics on campus; that would suggest a quota, which the Court had already ruled out in earlier cases.
Justice Stephen Breyer tried to come to his aid. “The proper test of critical mass is, is the minority isolated, unable to speak out. That's the test.” Rein agreed. During the bench trial in Grutter, the law school’s admissions director helpfully defined a critical mass as "meaningful numbers" or "meaningful representation." The Michigan law school dean was concerned that "underrepresented" minority students not feel "isolated" — a concern UT shared.
The university hoped it could engineer better interracial relations with race-conscious admissions; the drive for a critical mass of black and Hispanic students was a poor means to accomplish that end.
Here was another questionable definition. Sociological studies of residential segregation and K-12 education assume that blacks and Hispanics are “isolated” when clustered in neighborhoods or schools where there are comparatively few whites and there’s not much interracial contact. Remarkably, UT made precisely the opposite claim. Non-Asian minority students were isolated because there were too many whites (and Asians) in the school, leaving them short of same-race classmates and thus insufficiently heard in university life. It was a redefinition of the concept of isolation that invited racially defined clubs and other social activities that would give voice to what they claimed were their distinctive values. The university hoped it could engineer better interracial relations with race-conscious admissions; the drive for a critical mass of black and Hispanic students was a poor means to accomplish that end.
Of course determining if a sufficient number of minorities had been admitted depended on who counted as a “minority.” Chief Justice John Roberts wanted to know whether “someone who is one-quarter Hispanic [should] check the Hispanic box or some different box.” Gregory G. Garre, the attorney for the university, replied, “students should check boxes based on their own determination.” There is a multiracial box, he noted. Roberts wasn’t satisfied. “What about one-eighth [Hispanic]?” he asked. He was still at a loss: “So how do you know you have 15 percent African American — 15 percent Hispanic or 15 percent minority?” Students self-identify, Garre responded.
Justice Antonin Scalia pursued the question. “Did they require everybody to check a box or they have somebody figure out, oh, this person looks 1/32nd Hispanic and that's enough?” Justice Samuel Alito was also bothered by the crude ethnic and racial categories. “How do you justify lumping together all Asian Americans?" he asked. "Do you think — do you have a critical mass of Filipino Americans? Cambodian Americans ... Do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?” The same question could have been asked about lumping all whites together, of course.
Garre’s response to Justice Scalia was to point to a “study.” What kind of study? Alito asked. Garre had given the all-purpose answer familiar to readers of sloppy journalism in the mainstream media. A study says... Research shows... A study by whom and of what quality? No one on the Court pressed Garre further.
UT claimed it had adhered to the 2003 decision, engaging in a ‘holistic’ review of each application. But it had a race or ethnicity question on the cover of the applications!
The university wanted not just a critical mass in the school at large, but in every class. “How do they figure out that particular classes don’t have enough?" Scalia asked. "What, somebody walks in the room and looks them over to see who looks Asian, who looks black, who looks Hispanic?” Garre denied the school had a compelling interest in any specific diversity in every single classroom. And at that point, Scalia in obvious frustration said, “I don’t know what you’re talking about!” Do they look to individual classroom diversity or not? And if so, how do they decide when classes are diverse?
Student lists were posted in every classroom, Garre replied. The university knew from application forms what race and ethnicity boxes the students had checked; it was thus easy to know whether Economics 201 had a sufficient number of blacks or Hispanics. In Grutter, the Court had said admissions processes must "ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." UT claimed it had adhered to the 2003 decision, engaging in a “holistic” review of each application. But it had a race or ethnicity question on the cover of the applications! If there was any doubt that getting a so-called critical mass of minority students was the school’s highest priority, that remarkable and dismaying fact alone should have settled the question.
In some classes, quite a number of students would be black or Hispanic. As Justice Clarence Thomas pointed out in a concurrence, the Court of Appeals noted the high percentages of members of both groups in the College of Social Work and that of Education. No one on either court raised the question of how many non-Asian minority students were taking classes in the hard sciences or math — classes that would truly open professional doors for students from disadvantaged backgrounds — a goal the university neglected to mention.
Why was the meaning of diversity always confined to blacks and Hispanics? At many elite schools, ideological diversity was not of interest, and conservative students might feel much more “isolated” than non-Asian minorities. But a political mix was never described as relevant to educational quality.
A political mix was never described as relevant to educational quality.
The university wanted to provide the educational benefits of diversity, but already had many black and Hispanic students as a consequence of the state’s program to guarantee admission to all students who graduated in the top 10 percent of their high school class.
Why didn’t the 10 percent plan suffice to provide the desired diversity? Speaking for the university, Garre argued “taking the top 10 percent of a racially identifiable high school may get you diversity that looks okay on paper, but it doesn't guarantee you diversity that produces educational benefits on campus.” Scalia pressed him: “I don't understand that. Why? Why doesn't it?” The school wanted the representation of different black and Hispanic viewpoints, Garre explained. “What kind of viewpoints? I mean, are they political viewpoints?” Scalia asked. Not all blacks grow up with the same experiences, Garre replied.
Within minutes Garre changed his tune, however. Those admitted through the top 10 program, he suggested, actually did grow up with pretty much the same experiences. They tended “to come from segregated, racially identifiable schools.” That “segregation” was the ticket to their admission, Garre could have said. Given the racial gap in academic achievement, had those students gone to integrated schools, they would have been much less likely to end up in the top 10 percent of their class. Justice Ruth Bader Ginsberg got the point. “The only way the top 10 percent works,” she said, “is if you have heavily separated schools. And worse than that ... if you want to go to the University of Texas ... you go to the low-performing school, you don’t take challenging courses, because that’s how you’ll get into the 10 percent.”
Garre wanted a greater number of privileged black and Hispanic students than the top 10 percent plan yielded. As Justice Anthony Kennedy noted, evidently the university wanted “underprivileged of a certain race and privileged of a certain race.” All the talk about “holistic factors” and judging individuals boiled down to race.
Fisher and her attorneys did not ask the Court to overturn its 2003 decision in Grutter, upholding the use of race in pursuit of the educational benefits of diversity. Had they done so, Scalia would have been happy to comply, he wrote in a one-paragraph concurrence. But, as it was, the Court was stuck with its prior commitment to race-conscious admissions, and after all the questions and non-answers in the oral argument, Justice Anthony Kennedy wrote a pedestrian 13-page decision for a majority of seven. (Justice Elena Kagan had recused herself, having been involved in the case as solicitor general, and Justice Ruth Bader Ginsberg dissented.) The decision decided nothing important.
Evidently the university wanted ‘underprivileged of a certain race and privileged of a certain race.’ All the talk about ‘holistic factors’ and judging individuals boiled down to race.
Justice Kennedy, in writing for the Court, confined himself to a few bare bones points. "Strict scrutiny meant strict, a standard the Fifth Circuit failed to meet; it had been much too lenient in finding UT’s program constitutional.” On this, all seven justices agreed. Justice Kennedy’s opinion was skimpy and timid, but in sharp contrast, Justice Thomas wrote an electrifying concurrence that reads more like a dissent. He took on liberal conventional wisdom about racial classifications as no one else could have done, with such eloquence and credibility. His concurrence should have made the liberals blush with shame; they preen about their racial sensitivity but talk like the segregationists of the past, he argued.
“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 reminded the Court. “Allegedly” was the operative word. In fact, the argument for educational benefits reminded him of the preposterous case made for racial segregation in the 1950s. Segregationists said black schools would provide more leadership opportunities for their black pupils, and that separate education would protect black children from racist white students and teachers. Yet it was constitutionally “entirely irrelevant whether the University's racial discrimination increases or decreases [white] tolerance.”
One can imagine Justice Thomas bursting out with one of his famous belly laughs after coming up with the analogy between the arguments of the Court and those of segregationists. (It’s hard to think of a more delicious way in which he could have tortured those on the left.) He had a sound point. Justice Powell, writing for the Court in Bakke, had quoted Justice Felix Frankfurter, who referred to “the atmosphere of 'speculation, experiment and creation' — so essential to the quality of higher education — [that is] is widely believed to be promoted by a diverse student body.” In Fisher, Kennedy claimed that “the attainment of a diverse student body ... [enhances] classroom dialogue and the lessening of racial isolation and stereotypes.”
Whether racial double standards — discriminating against whites and Asians — actually made for better learning was the most important question posed by the case. But the asserted educational benefits that flowed from diversity were a feel-good fairy tale, and as such another deeply flawed assumption. In Grutter, Justice Sandra Day O’Connor, writing for the Court, had made the stereotypes point, but also said more black and Hispanic students promoted cross-racial understanding, and made for lively classroom discussion and more learning. She declared that in 25 years the racial gap in academic achievement would be closed, making racial double standards in evaluating students unnecessary. It was all wishful thinking. Today, we’re already halfway through that quarter century, and the learning gap between whites and Asians, on the one hand, and non-Asian minorities on the other hand remains as wide as it was in 2003.
O’Connor declared that in 25 years the racial gap in academic achievement would be closed, making racial double standards in evaluating students unnecessary. It was all wishful thinking.
The theory that interracial contact combats racial stereotypes and increases the likelihood of interracial friendships has been discredited by more than half a century of research. Whether in former Yugoslavia or in Lebanon, mere contact between people of different racial and ethnic groups has clearly not reduced the likelihood of ethnic tension and conflict. Simply bringing people who identify with different groups together in the same room, as it were, isn’t a recipe for greater harmony and mutual respect. Indeed, most whites and blacks in the Deep South before Brown v. Board were in constant contact, far more so than they were in northern states.
Only under special circumstances does the contact theory work as we hope it will; Jackie Robinson earned the respect of teammates and Dodgers fans but he earned his status as a star by more than meeting the standards applied to white players. He was no beneficiary of racial engineering by well-meaning but misguided whites.
Much evidence suggests that racial double standards in university admissions increase the self-doubt of minority students about their abilities to succeed academically, and decrease their incentive to work hard, knowing they might receive special treatment in admission to professional schools and in the workplace.
None of the social science literature casting doubt on the purported educational benefits of race-conscious admissions, which was reviewed in an amicus brief submitted to the Court, was of the slightest interest to Justice Kennedy. Some have said those benefits are an educational question, not a constitutional one. But the Fourteenth Amendment compelling interest test could not be met unless the use of racial identity in sifting through applicants made for a better school.
Affirmative action today
Where does the Court’s decision leave us? Kennedy’s opinion for the Court avoided more questions than it answered. Courts are supposed to use stricter scrutiny in judging such programs in the future, he said. Big deal. In 2003, the Grutter Court had stressed the limits imposed on university actions by the need to apply the test of strict judicial scrutiny in reviewing race-driven programs. That admonition landed with a thud: universities continued using racial preferences with abandon. To borrow a phrase from Joseph Stalin, how many divisions did the Supreme Court have? And what is going to be different now?
Simply bringing people who identify with different groups together in the same room, as it were, isn’t a recipe for greater harmony and mutual respect.
Preference-critics note that Fisher demanded that race-neutral alternatives be explored in creating a diverse student body — a demand that Justice O'Connor had rejected in Grutter — and in this sense was a step in the right direction. "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," the Fisher Court said. But, beyond the top 10 percent plan, which UT described as insufficient, what would a race-neutral program look like? Indeed, what did "diversity" look like? Perhaps the definition boiled down to, we'll know it when we see it. And, as suggested above, those purported educational benefits were made up out of whole cloth. Most important, the Court said nothing that would force schools to abandon their commitment to the elusive goal of diversity. Diversity first, academic standards second: Those were the priorities of all highly selective universities and Fisher left them in place.
Opponents of racial preferences have long argued that lowering the admissions bar for preferred students is patronizing and demeaning. But there is no evidence that the non-Asian minority students at places like UT find them so. Does the black Princeton undergraduate who benefited from affirmative action policies wish she or he had gone elsewhere? Justice Sonia Sotomayor, in her biography, responded to the question with an emphatic no. She was undoubtedly voicing the view of most beneficiaries of race-conscious admissions at the highly selective schools.
"It is very difficult to stop people from finding a path toward a goal in which they firmly believe," William G. Bowen and Derek Bok wrote in The Shape of the River, their much celebrated (and profoundly flawed) 1998 book on affirmative action. And the goal universities really believe in is diversity. One way or another, schools will get the racial mix they wanted.
That remains the case — unless the Asian American rebellion is the beginning of the end of racial preferences as we know them.
Abigail Thernstrom is an adjunct scholar at the and for 12 years served as a commissioner and then the vice-chair of the U.S. Commission on Civil Rights.