Abigail Fisher sued the University of Texas after she was not offered a spot at the university's flagship Austin campus in 2008. (Charles Dharapak/Associated Press)
THE SUPREME Court on Thursday upheld the University of Texas at Austin’s affirmative action program — but warned public colleges and universities that use race as a factor in admissions: The practice must be limited, nuanced and constantly reevaluated. “It remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Justice Anthony M. Kennedy wrote for the 4-to-3 majority.
The ruling was guarded and uneasy, as it should be; the use of race in any decision should make us uncomfortable. The majority nevertheless recognized that the university’s program is carefully designed to advance a series of legitimate educational goals — and, crucially, that supposedly race-neutral alternatives could be far worse.
In past rulings, the court instructed public universities that they may consider race in admissions because racial diversity on campus “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Moreover, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” With racial tensions and disparities persisting, these goals remain as compelling now as when the court articulated them a decade ago.
Because the court had also condemned the use of crude racial quotas, the University of Texas created a system in which race is “a factor of a factor of a factor of a factor” in evaluating a small subset of student applications. Applicants subject to this review are scrutinized individually, and consideration of race is put in a broader context of essays, recommendations and biographical details. This is precisely the kind of sensitive and modest affirmative action program the court previously endorsed.
The school’s critics claim that the University of Texas failed to identify clear goals for its program and metrics to demonstrate that it is achieving them — a difficult assignment, given the court’s objection to strictly numerical targets. Critics also claim that there are race-neutral alternatives available. In fact, the Texas legislature enacted one: The state automatically offers up to three-quarters of the university’s slots to students in Texas who graduate in the top 10 percent of their high school classes.
The court strongly and persuasively argued Thursday that, though this crude 10 percent system might result in higher minority enrollment than the university would have in the absence of any affirmative action program, it is more objectionable than the carefully designed race-conscious program that the University of Texas uses to fill the rest of its class. The 10 percent system is race-neutral only in name, clearly designed to pump up minority enrollment, but in a way that “sacrifice[s] all other aspects of diversity in pursuit of enrolling a higher number of minority students.” It relies on persistent racial segregation for its diversity-enhancing effects. It also disadvantages students who have compelling profiles but do not hit the right metrics — the student who suffered a family crisis in her freshman year but recovered and achieved good grades during the rest of her high school career, for example.
The court did not offer open-ended permission to engage in race-sensitive admissions policies, nor should it have in a society that should strive to judge individuals based on qualities deeper than skin color. “It is the University’s ongoing obligation to engage in constant deliberation and continued reflection,” Justice Kennedy wrote. Fair enough.