Jane Shaw has kindly invited comments on yesterday’s decision by the Fifth Circuit panel in the Fisher v. University of Texas remand, so here are a few.
First, the majority opinion apparently believes that it is all right to engage in racial discrimination in order to achieve the educational benefits that accrue from having a critical mass of this or that racial group. Yet the precise nature of the “educational benefits” at the University of Texas are never defined, nor is the term “critical mass.” And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy demanded in this case – that, specifically, there are no race-neutral ways of achieving the relevant educational benefits – when these terms are undefined? As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger is not working very well.
Second, the reason that racial preferences are being used in addition to the Top Ten Percent Plan is that the TTPP admits the “wrong kind” of blacks/Latinos – that is, they are lower class instead of upper class. But surely some blacks/Latinos of the “right kind” are admitted under the TTPP, and surely some of the blacks/Latinos admitted under holistic review are of the “wrong kind.” Yet the University seems confident that it can predict that the random interracial conversations occurring on campus will be improved by drawing more from this pool of blacks/Latinos versus that pool of blacks/Latinos – so confident, in fact, that it is willing to overlay racial preferences on top of the TTPP. And this takes us back to my first point: Precisely what “educational benefits” from these conversations are heightened not only by having different amounts of melanin, but different incomes within a melanin group?
It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds. But that is precisely why all stereotyping, preference, and discrimination based on race should be rejected.