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The Supreme Court Will Regret Wading Back Into Affirmative Action

Even more confusion ahead!

Mike Simons/Getty Images

The last time the Supreme Court took a crack at affirmative action was ten years ago, in Gratz v. Bollinger and Grutter v. Bollinger. Grutter and Gratz left a trail of confused logic and irrelevancy. Tuesday’s ruling in Fisher v. University of Texas made the confusion even worse.

Grutter and Gratz compared admissions policies at the University of Michigan law school and at U of M’s undergraduate college. Undergraduate admissions were done on a strictly numerical basis. Applicants got points for good grades, points for SAT scores and so on—including points for being African-American or other officially sanctioned minority. You add up the points and the applicants with the most points get in.

At the law school, admissions were done on a so-called “holistic” basis. A variety of factors were taken into account—many of them the same factors as in college admission (including race). But this was done in ways far too sophisticated and subtle to be reduced to a mere mathematical formula. Each applicant was treated as an individual, not as part of a group (whatever that means) and race was supposedly not allowed to be the sole or determining factor for any student.

The Court liked the sound of this “holistic” business and upheld the law school admissions policy. The undergraduate policy of strictly by the numbers was held to violate the 14th Amendment’s guarantee of equal protection of the laws. These rulings sent higher education admissions officers into an easter egg hunt for ways to get more minorities that didn’t require giving preference to minorities. Some of them (including those at the University of Texas) did pretty well at this. They found that if you explicitly favor students from certain high schools or children of single parents, then you get more minorities without having to order them up specifically from the menu.

If you’re going to evaluate the success of your admissions process in terms of how many minority group members it produces, then it is silly to forbid explicit consideration of race in the process. The best way to increase the number of minority students is to look for, recruit and admit minority students. If your goal is, say, 20 percent minorities in your classrooms, what difference does it make how you get there, and why is it morally superior to pretend you’re looking at other factors when what you really care about is race? For the applicants, admissions is a black box with their applications going in one side and a “yes” or “no” coming out the other. They don’t care what goes on inside the black box.

And what does it mean to treat each applicant as an individual and not as a member of a group, while still allowing membership in that group to be a “factor,” as long as it’s not the controlling factor in any individual case? Even leaving aside all those logical U-turns, this also makes no sense. Racial identity either makes no difference or makes all the difference. Those are the only possibilities. You’re either in or out, and (like a third or fourth party in a close election) your race is a determining factor or no factor at all.

Although logically confusing, Gratz and Grutter at least seemed simple to administer. All they seemed to require is avoiding specific quotas and including a bit of mumbo-jumbo about diversity. Then along came Fisher. The Justices apparently felt they’d made it too easy, or hadn’t made themselves clear, in Grutter and Gratz. So in Fisher, they cracked the whip. When they say “strict scrutiny” (a legal term of art meaning, roughly, “this had better be good”), they mean strict scrutiny. A bit of boilerplate about diversity is not enough.

“A court may give some deference to a university’s judgment that … diversity is essential to its educational mission, provided that diversity is not defined as mere racial balancing…. However … the University must [also] prove that the means it chose to attain … diversity are narrowly tailored to its goal.” And, just in case you still don’t get it: “On this point, the University receives no deference.” The case was sent back to a lower Court with instructions to knock heads.

But what is the point of considering all those factors if you measure success by how close you come to duplicating the result of a numerical formula? And what is the point, for the Court, of forbidding the use of numerical formulas and then hoping that a more “holistic” approach will have the same result? The Court, and much of the commentary, seems enamored of “class-based” affirmative action, in which they think they see all the advantages and none of the disadvantages of the racial kind. David Brooks of the New York Times wrote Tuesday that when racial reverse discrimination goes away,

…Minority enrollments initially plummet. Then administrations devise class-based systems that look at the specific obstacles that applicants have overcome: growing up in a neighborhood with concentrated poverty, with a single parent, or in a home with few financial assets. Minority enrollments recover at least to a significant degree, and the new system is fairer than the old.

A nice fantasy. But “Class-based” affirmative action—even if it manages to make people forget about race—will not eliminate most of what angers some people about race-based affirmative action. Someone, black or white, will still be jumping ahead of you in the queue for a job or a place in school. And class-based affirmative action will bring its own horrors, by politicizing decisions about people’s place in life that today are still considered beyond politics.

Brooks suggests giving a break to students from certain neighborhoods or in a single-parent home. Who is going to draw the line between favored neighborhoods and unfavored ones, and who is going to decide whether the line was drawn correctly? Who is going to be the one who has to tell the kid with two parents—one of them an injured war veteran and the other a depressed alcoholic, that even though she was the valedictorian of her class, she’s not getting into UT Austin because the favoritism is only for single parents? Who is going to pay for the lawyers when the lawsuits start flying?

Even now there is a bit of trouble every now and then over who qualifies as black or what it takes to be a woman-owned small business. Any attempt to assign people to an official “social class” for the purpose of handing out government or court-ordered goodies is doomed to ugly failure. “It is at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine," said the Court, "that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.'” I don’t know what “defining feature” means, but if it means a feature that got the candidate in, or kept her out, this is true of all features that matter at all. If membership of the gardening club made a difference in her application, then it made all the difference, whether her application was numerical or holistical.

The Justices will be sorry they wandered into this thicket.