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.