WHAT HAS happened since Grutter v. Bollinger, the 2003 Supreme Court case that upheld narrowly designed affirmative action programs at public universities? Rather than universities approaching the point at which racial disparities and misunderstandings have melted away, reducing the need for diversity-promoting programs, African American students across the country are protesting a persisting sense of isolation and an entrenched bias they perceive on campuses.
Yet on Wednesday the court will once again consider — for the third time in a little over a decade — whether it is time to shut down public university affirmative action programs, scrutinizing the policy at the University of Texas at Austin.
The university’s challengers essentially want the court to disqualify UT’s practices for adhering to the standards that the court itself has set. The court has said that affirmative action cannot be a numbers game; now UT’s critics complain that the program lacks “concrete targets.” The court has held that affirmative action programs must be modest, treating applicants as individuals who must be considered in the whole; the critics complain UT’s policy won’t achieve dramatic benefits.
For many of the university’s critics, these and other complaints no doubt mask the real objection: In their view, considering race in admission to public schools is unconstitutional and always has been, even as the court repeatedly has said otherwise. “[T]hese arguments,” UT claims, “are ultimately aimed at dismantling, rather than applying, the Court’s existing precedent, and replacing it with a regime in which race can essentially never be considered even in holistic review, no matter how individualized or modest.”
In fact, the university’s policy is both individualized and modest, per the court’s desires. By state law, UT must fill 75 percent of its class by automatically admitting the top 10 percent of graduating high school seniors in Texas. This provides diversity without explicitly considering race. But the top 10 percent rule promotes diversity, perversely, only because so many Texas high schools are not diverse. Moreover, on its own the 10 percent plan is a blunderbuss approach, putting minority students who do not live in racially segregated zones of the state at a disadvantage.
UT therefore admits the last quarter of its students in a way that smooths out some of the top 10 percent plan’s rough edges. Race can be considered, but only as part of applicants’ whole profiles. Upholding the policy, the U.S. Court of Appeals for the 5th Circuit noted last year that UT conscientiously followed the Supreme Court’s vision of individualized, narrow consideration of race in public college admissions. If the justices reverse their long-standing precedent on affirmative action, they will leave universities without the tools they need to admit and educate a generation of leaders who will shape a society still challenged by racial division, discomfort and alienation.