Abigail Fisher was back at the Supreme Court Dec. 9 for the second hearing of her case, which alleges that she was rejected by the University of Texas at Austin because she is white. Photo: Meredith Kolodner
Because she wasn’t in the top ten percent of her high school class, Abigail Fisher didn’t qualify for automatic admission to University of Texas at Austin, under the state’s “Top Ten” plan. But Top Ten accounts for only 75 percent of incoming freshmen; the rest are picked in a process called holistic review, which focuses mostly on test scores and grades but also takes into account other factors to achieve diversity, including race. Fisher, who is white, didn’t get in that way, either. So she sued, arguing that the use of race in the holistic review process violated her right to equal protection under the Fourteenth Amendment. On Wednesday, the Supreme Court heard oral arguments in her case for the second time.
The Supreme Court’s framework for evaluating affirmative action comes from a 1978 case, Regents of the University of California v. Bakke, in which an opinion by Justice Lewis F. Powell, Jr., invalidated the University of California, Davis medical school’s practice of reserving 16 of 100 seats in each class for underrepresented minorities. Affirmative action is constitutional, Powell held, but must be “narrowly tailored.” Davis’s system failed that test because it operated through quotas. Race can be a “plus,” Powell held, but each applicant must be judged “as an individual.”
If you object to affirmative action because it discriminates against white and Asian applicants, Powell’s distinction will seem beside the point. Calling race a “plus” doesn’t change the fact that it makes it easier for some people to get in and harder for others. But for Powell, the problem with affirmative action had nothing to do with admission rates, and everything to do with the process of selection. “The denial to [Bakke] of this right to individualized consideration without regard to his race is the principal evil of [Davis’s] special admissions program,” he wrote. In other words, the harm wasn’t that Bakke didn’t get into medical school; it was that the UC Davis admissions office didn’t even consider him for one of the 16 reserved places.
As Lincoln Caplan explained for the New Yorker on Wednesday, Powell’s compromise—which has been central to every affirmative action case since Bakke—was motivated by a yearning for a “color-blind society,” an ideal that has continued to resonate for the court’s conservative justices, most notably Chief Justice John Roberts. In a 2007 opinion, Roberts memorably wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Roberts’s formulation has been mocked as wishful thinking, but it is more than simply naÃ¯ve. The court’s colorblind ideology depends on a fundamentally distinct understanding of what racism means. To the conservative justices, the evil of racism has little to do with poverty, inequality, or segregation, and lies almost entirely in the act of classifying people by race.
The idea that essentializing is the most important consideration regarding race—more important than, say, closing gaps in wealth, education, and incarceration—explains some otherwise puzzling lines of reasoning in Wednesday’s arguments. Roberts and Justice Samuel Alito were particularly interested in whether the use of race was even producing a significant increase in African American students. The implication was that the smaller the impact on minority enrollment, the less justifiable it is to use race. Roberts seemed open to the argument that, as he put it, “at some point the actual benefit of the program turns out to be not really worth the very difficult decision to allow race to be considered.” That puts a university in a Catch-22, since if it admits too many students using racial preferences, the court will say race is too determinative. But for Roberts and Alito, that may be the point: any explicit use of race is going to outweigh the benefits it yields. “This is consideration of race,” Roberts said at one point. “It’s a very serious matter.”
Justice Anthony Kennedy, whose vote will decide the case, is also a color-blindness enthusiast, but unlike the other conservatives agrees with the Bakke test. For the UT plan to survive, he will have to be persuaded that it uses race as little as possible. That’s why another theme of Wednesday’s argument was the idea that Top Ten makes race-conscious holistic review unnecessary. Fisher’s lawyer, for instance, held up Top Ten as a model race-neutral policy—even though it gave his own client no chance of admission. Alito grilled UT’s lawyer on why Top Ten isn’t sufficient to achieve diversity.
This seems paradoxical, since treating students as nothing more than their class rank is the least individualized approach imaginable. Plus, as Justice Ruth Bader Ginsburg pointed out, Top Ten is actually very conscious of race: it was adopted to increase the percentage of minority students at UT while working around the court’s preference for race-blind admissions. It only works because Texas high schools are astonishingly racially segregated. But the program is blind to race in the one way that matters to the conservatives: it doesn’t explicitly classify any student by race.
The conservatives sense that there’s something unique about racial classifications. They don’t lose sleep over classifying people by state of origin, for instance, even though that too ignores the individual. Yet they seem unable to understand why race-based classifications are particularly worrisome: their historical tendency to be used to oppress minorities. Treating someone from Ohio primarily as an Ohioan doesn’t seem so bad because Ohioans were never considered private property; federal housing policy didn’t discriminate against Ohioans throughout most of the twentieth century; men from Ohio don’t have a one in three chance of going to prison during their lifetime.
Racial stereotyping, in other words, is so uniquely dangerous not in a vacuum, but because of the historically unique consequences it leads to. This suggests that affirmative action should be assessed ultimately against those consequences; judging it purely according to how much it classifies by race ignores the reasons we care about racial classifications in the first place.
But the court doesn’t see things this way. Its intense discomfort with using racial classifications as such flows naturally from American conservative thought generally. Call it free-market race theory. The idea that the key to ending discrimination is for the government to stop discriminating is akin to the Republican mantra that economic health depends on “getting the government out of the way.” Both theories flatter the notion that a person’s success or failure is attributable purely to the individual, not social or historical forces. Affirmative action is an affront to that idea, because in acknowledging the importance of race it acknowledges the importance of racism—the real kind.