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Why the court wants to try again

By Richard Sander and Stuart Taylor Jr.,

Richard Sander is a law professor at UCLA. Stuart Taylor Jr. is a journalist and author in Washington. They are co-authors of “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.”

The Supreme Court is scheduled to hear oral argument next week in Fisher v. University of Texas, the high court’s first case on the use of race in higher education admissions since its 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Why did the court decide to revisit this issue after less than a decade? Much of the speculation on this question centers on the shift in the court’s alignment; since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court is less sympathetic to racial preferences. But another factor is perhaps as important: Grutter and Gratz laid out a strategy for containing affirmative action that clearly, objectively failed.

In 2003 — as today — the court was closely divided on affirmative action policies, and as the “swing” vote, O’Connor played a central role in shaping the decisions. While O’Connor had usually voted against racial preferences on such issues as contracting and hiring, from her first such votes in the mid-1980s through the 1990s, she took a different approach in 2003, in her first case involving university preferences. O’Connor held that because of the compelling interest colleges and universities had in a diverse learning environment, racial preferences were permissible if they met some specific restrictions: Race alone must never be the “defining feature” of an application; no racial group could be “insulated” from competition with other applicants; schools must carefully consider race-neutral alternatives in pursuing diversity and must phase out the use of race as quickly as possible. In Gratz, O’Connor joined one set of justices in finding that the University of Michigan’s undergraduate admissions had violated these and similar principles by awarding every black and Hispanic student a specific number of points based on their race; but in Grutter she found that the university’s law school, which used a more subjective process, did not.

Even when O’Connor wrote the majority opinion in Grutter, there was a good deal of skepticism about how seriously she took her own restrictions, because aside from the absence of a specific race “formula” at the law school, the law school seemed to violate O’Connor’s principles at least as much as the undergraduate college admissions process invalidated in Gratz did. There was, for example, virtually no evidence in the record that the law school had ever seriously considered race-neutral methods of achieving student diversity or even given meaningful weight to such factors as a student’s socioeconomic background (the college, in contrast, gave points to a wide variety of background factors). Justice Anthony M. Kennedy wrote in dissent that O’Connor’s opinion had effectively abandoned strict judicial review of the university’s use of race because, while laying down strict tests, it gave only “perfunctory” attention to whether the law school met them.

A key question following Grutter and Gratz, then, was whether universities would take O’Connor’s words seriously, and start to narrow and reform their use of racial preferences, or whether they would instead take the decisions as a signal that court supervision of preferences would be lax, so long as they did not use explicit formulas or point systems in administering preferences.

The available evidence suggests that most colleges and universities have followed the second path; indeed, racial preferences have become larger and more mechanical than before Grutter.

At the University of Michigan’s undergraduate college, the school quickly scrapped its point system. But our analysis of its 2006 admissions patterns found that racial preferences were clearly much larger than before Grutter, and race was more often the “defining feature” of an application. If we compare Asian and black students with similar test scores and grades, for example, blacks had a 96 percent chance of admission in 2006, compared with 11 percent for Asians. The college used more racial categories in evaluating applicants after Grutter and paid less attention to socioeconomic background.

Our analysis of a sample of public law schools before and after Grutter shows much the same pattern: The effective weight given to black applicants based on their race went up at schools around the country, and the room left for consideration of non-racial forms of diversity went down. Post-Grutter, many law schools have automatically admitted every black applicant whose LSAT scores and college grades meet some minimal threshold, while turning down 90 percent of white applicants with the same qualifications.

We see little room to doubt that universities have taken Grutter and Gratz as a green light to pursue racial preferences even more aggressively than before. The most memorable line in O’Connor’s Grutter opinion was her expectation that racial preferences would disappear by 2028. With nine of those 25 years already past, and preferences more entrenched than ever, it is not surprising that a majority of the justices think the time is ripe to revisit this issue.

Read more from Opinions: Katrina vanden Heuvel: Progressives must work to retake the Supreme Court Marc A. Thiessen: Why are Republicans so awful at picking Supreme Court justices? E.J. Dionne Jr. Justice Scalia should resign

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