EDITORIAL, The New York Times
Published: October 10, 2012
Affirmative action provokes conflicting views about what equal protection means under the law. Does the Constitution permit race-conscious programs that provide minorities with opportunities, even though it prohibits programs that exclude minorities because of their race?
For more than three decades, the Supreme Court has said yes — that the Constitution allows academic programs to consider race as one factor in admissions, provided the program meets certain hurdles: it must serve a compelling state interest and be as limited as possible.
Affirmative action is largely a voluntary commitment by leading institutions that are convinced it is in their self-interest to enlarge opportunities for historically disfavored groups, because it helps fulfill their missions. It would be a travesty for the court’s conservatives to reverse or weaken longstanding legal precedent on this issue. The harm they would inflict in doing so would be felt in education, business, national defense and many areas of American life.
The justices — for no compelling reason — chose to reconsider affirmative action principles in Fisher v. the University of Texas at Austin, argued before the court on Wednesday. They focused on two central questions: how the university uses race in admissions and whether the university’s goal of achieving a “critical mass” of minority students is sufficiently limited and defined to pass constitutional muster.
The university admits about 80 percent of its students by automatically taking the top 10 percent of students from every high school in the state. The rest are admitted by individual assessments, taking account of grades, activities and many other factors, including race. Texas maintains that its aim is to have a sufficient amount of racial diversity on campus to enrich the education for all students. And, to reach that goal, it was necessary to consider race as one factor to help increase minority enrollees by a modest number.
A lawyer for the plaintiff, Abigail Fisher, argued that the university cannot define what it means by “critical mass” without setting a target for the number of minority students. But that would be the equivalent of creating a quota, which the court has said is unconstitutional.
The conservative justices expressed suspicion that what Texas is doing with its admissions is somehow illegitimate. But it is using an approach approved in a 2003 Supreme Court case, Grutter v. Bollinger, that explicitly allowed race to be considered as long as it was not the determining factor.
As the Grutter case noted, universities occupy a “special niche” in America’s “constitutional tradition,” and should be given considerable freedom to make judgments about what education entails — and that includes making admissions decisions in putting together a class of students who can learn from each other.
The Roberts court’s suspicion should come as no surprise, though. Since the Grutter decision, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., both vehement critics of race-conscious programs, have joined the court. Justice Alito replaced Justice Sandra Day O’Connor, who wrote the Grutter opinion. Justice Anthony Kennedy, who opposed the Grutter ruling, is likely to be the decisive vote in this case (Justice Elena Kagan is recused, presumably because of her involvement as solicitor general). He seemed eager to get the university’s counsel to say its admission program does treat race as determinative, though it does not: “So what you’re saying is that what counts is race above all.”
The court has received many briefs from former military leaders, major corporations and colleges and universities, all beseeching it not to limit them in using race-conscious policies as a means to increase diversity in their institutions. If Justice Kennedy joins in rejecting the Grutter principles in this case, the court will turn back the clock on improvements that took a generation to achieve.
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