The United States Supreme Court has always been reluctant to take on the issue of race with any sensitivity toward Blacks. In its famous Dred Scott decision, Justice Roger B. Taney, writing for the majority in 1857, said Blacks, had been “regarded as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit.”
That decision was not reversed until 1954 in Brown v. Board of Education.
Today, the Supreme Court is not as blatantly racist as it was in the 1850s, but has essentially decided that in order to address the question of race, an institution must first try to find solutions that ignore race.
Nowhere is that clearer than in its handling of affirmative action, including the pending case against the University of Texas.
In its 1978 Bakke ruling, the court outlawed an affirmative action program at the University of California-Davis Medical School that reserved 16 of 100 seats for members of certain minority groups.
Again in 2003, the court struck down a University of Michigan undergraduate program. In Gratz v. Bollinger, the court rejected an affirmative action program that provided a 20-point bonus to underrepresented ethnic groups, including Blacks, Latinos and Native Americans. The university used a 150-point scale, with 100 points needed to gain admission.
However, the court upheld the university’s law school affirmative action program that considered race and ethnicity along with other factors.
In sending Fisher back to the 5th Circuit Court of Appeals for additional review, the Supreme Court said, “On this point, the courts below were correct in finding that Grutter calls for deference to the University’s experience and expertise about its educational mission. However, once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal.
“…The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity [my emphasis].”
Rather than addressing race directly, essentially the Supreme Court requires that race be first ignored when crafting an affirmative action program and only after that effort has failed, can universities use race as one of many factors in considering applicants.
It doesn’t take a rocket or social scientist to figure out that’s a doomed approach.
In fact, the state of Texas created its 10 Percent Plan – whereby UT-Austin automatically admits students in the top 10 percent of each Texas high school graduating class to the flagship university – was created in the wake of an adverse affirmative action ruling.
The school’s original affirmative action program was struck down by the 5th Circuit of Appeals on March 18, 1996.
The court held that “the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school.”
In the wake of that defeat, the Texas legislature devised the 10 Percent Plan. In its response to Fisher, the university listed numerous race-neutral approaches it has taken, none of which has returned its Black or Latino enrollment to earlier levels.
And when the University of Michigan’s Law School program was upheld by the Supreme Court in 2003, the University of Texas moved to use race among seven factors it considered when evaluating students not admitted under the 10 Percent Plan. None of the factors, including race, were given any numerical value.
Still, Fisher chose to sue solely because race was considered with the other factors. The university countered that Fisher, who did not graduate in the top 10 percent of her class, would not have been granted admission even if no affirmative action program existed.
The New York Times published a story Dec. 9 with charts showing that in every state that imposed a ban on affirmative action – California, Michigan, Texas, Washington, and Florida – Black and Latino admission subsequently declined.
Yet, even in the Fisher cases, justices were still quoting O’Connor, who said in Gratz,
“It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased… We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
That was 12 years ago. And if the Supreme Court keeps seeking ways to avoid directly confronting the issue of race, that 25-year goal is nothing but a pipe dream.