The University of Texas and Racial Preferences
The Supreme Court could consider an affirmative-action case.


Hans A. von Spakovsky

Fisher v. University of Texas does not seek to overturn Grutter. It asks only that UT properly apply the Supreme Court’s principles that require using race-neutral alternatives first where they have been shown to work in achieving the state’s claimed interest in diversity. The plaintiffs acknowledge that a university, in certain limited ways, may use race as one factor in its admissions process under the Grutter rationale (however misguided it is). But that does not give UT or the hundreds of schools that use such discriminatory admissions policies a racial carte blanche. If the Court agrees, it would have to adopt another convoluted standard, but at least it would be better than Grutter.

If the Supreme Court takes the case, the defenders of affirmative action, including the Obama administration, will decry the case as an attack on diversity in higher education. But this will be wrong. Fisher gives the justices an opportunity to reinforce one of the bedrock principles of equal protection: Every race-conscious government decision bears dangers to our nation and must be weighed exactingly and suspiciously.

Opponents of discrimination have good reason to hope that the Court could go even farther than the plaintiffs have requested and overturn Grutter, putting an end to state-sanctioned discrimination once and for all. Not least is the shift of personnel on the Court. Justice Sandra Day O’Connor, who authored this decision, was replaced by Justice Samuel Alito, whose jurisprudence favors race neutrality. There is nearly a decade of proof that Grutter is a failure at limiting discrimination. And then there’s Chief Justice John Roberts’s elegant statement in a 2007 school-integration case (agreed to by a majority of the Court) that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Abigail Fisher enrolled at another university and will graduate next year with an exemplary academic record. It would be a shame, however, if thousands of future applicants to UT were discriminated against on the basis of their skin color under the same circumstances.

— Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation, is a former member of the Federal Election Commission and former counsel to the assistant attorney general.