Is affirmative action in universities meant to help racial minorities or whites? The answer may seem obvious, but the Supreme Court’s response is not: it appears from its opinions that its goal in upholding affirmative action is to improve the education of white students. At least, that’s what it says.
This term, the Court is going to hear a new case attacking affirmative action. The University of Texas rejected the applications of two white high school students, Abby Fisher and Rachel Michalewicz, for admission as undergraduates. The girls had good grades and standardized test scores plus a bushelful of extracurricular activities each. When Texas turned them down they sued the university for race discrimination, arguing that its affirmative action program was the reason they were rejected and asking the court to force it to stop considering race as a factor in admissions decisions. (Michalewicz is no longer participating in the case.)
As the case stands right now, the school is winning. But when the Supreme Court rules on it, the result could mean the end of affirmative action.
In order not to run afoul of anti-discrimination laws, affirmative action programs must serve a compelling interest and be narrowly tailored to satisfy that interest. Courts have decided that making up for unspecified past discrimination is not, under the law, a “compelling interest,” so judges have had to come up with a different rationale for race-based admissions plans: improving the education of white students.
The last time the Supreme Court reviewed a university’s affirmative action plan was in 2003, in a case against the University of Michigan. In its decision approving Michigan’s affirmative action plan, the Court noted that a primary goal of the plan was for the minority students it admitted “to contribute to the learning of those around them,” as Justice O’Connor wrote.
More specifically, according to a former professor at the University of Michigan Law School, minority students help their white counterparts by demonstrating that “there is no [single] ‘minority viewpoint.’” In other words, minority students were admitted to teach whites that not all individual members of racial minorities are the same.
The most recent court to rule on the Texas case, the Fifth Circuit Court of Appeals, analyzed the Supreme Court’s decision in the Michigan case and distilled it into several reasons that universities have a compelling interest in enrolling minority students. One was that the minority students present perspectives that white students otherwise would not hear. Another was that interacting with minority students prepares whites for the diversity they may face in the professional world. Together these reasons give the disturbing appearance that the Supreme Court approved giving minority students preferential treatment in admissions to benefit whites.
The Supreme Court also contended in its 2003 Michigan decision that diversity enhances the educational experience of minority students as well as whites, but studies documenting the benefits of single-race education cast doubt on that proposition. Justice Thomas castigated the Court for ignoring “the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students.”
Regardless, it doesn’t seem entirely plausible that a majority of Supreme Court justices would permit schools across the nation to exploit racial minorities for the sake of whites, and it doesn’t seem logical that they would permit discrimination against white applicants for admission in order to improve the education of the whites who are admitted. A more likely explanation is that the majority of justices on the Court think affirmative action is an important weapon against prejudice and the ills it has caused, but as the law has developed, it has boxed them into a corner where they can’t say that.
If that is true, it isn’t just the future of affirmative action that hangs in the balance with the University of Texas case. The integrity of the American judicial system is also in jeopardy if the Supreme Court is making up explanations to disguise its choice to do the right thing.
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