The University of Texas already has been told twice, but apparently needs to be told a third time: Discriminating against would-be students on racial grounds is contrary to the American way.
In the 1950 case Sweatt v. Painter, the state of Texas attempted to preserve the university’s no-blacks policy at its law school by setting up an all-black alternative in Houston in accordance with the “separate but equal” rationale established by Plessy v. Ferguson. The Supreme Court said no, laying the groundwork for the subsequent hammer-and-tongs assault on racial discrimination in education.
Nearly half a century later, in 1996, the University of Texas law school was once again defending its use of racial criteria in admissions, this time by discriminating against an accomplished young woman in order to preserve new race-based policies offered in tribute to the great god “Diversity.” Again, the courts said no; the Fifth Circuit ruled that “the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school.” The Supreme Court decided not to intervene.
Clear enough? Not for the University of Texas, which proceeded to use race as a factor in deciding which applicants to admit. And so again, the University of Texas heads to the Supreme Court to defend the use of racial criteria in admissions. The case is Fisher v. University of Texas, and the University of Texas should lose it.
UT argues that things are different this time around because race is not the deciding factor, because race is not assigned any specific value, and — note this — because the university claims not to monitor the racial composition of the students admitted during any given admission cycle. Which is to say, the university believes that it may discriminate against students on racial grounds because it is not keeping very close tabs on the consequences of its actions. That is a line of argument that only a state-university administration could make without expiring from shame on the spot.
The Civil Rights Act of 1964 is fairly straightforward in its language: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” In case you are wondering whether the University of Texas counts as such a program or activity, the act explicitly includes any “college, university, or other postsecondary institution, or a public system of higher education” receiving federal funding, which the University of Texas system does, in generous amounts. This unambiguous ban on racial discrimination stood as the law of the land until 1978, when the Supreme Court’s split-personality Bakke decision found some of the justices pretending, as they often do, that the words on the page do not mean that they plainly mean. In Bakke, the Court held that quotas were verboten but left room for using race as a bonus, a position later upheld by the Grutter v. Bollinger and Gratz v. Bollinger decisions.
The result of all this conflicting judicial precedent is to have made a hash of the law. But the Civil Rights Act of 1964 still says what it says, and the right thing for the Court to do is to enforce the law as it was written, not as America’s law-school deans wish it had been. If the elected branches want to reopen the Civil Rights Act to make room for preferential racial discrimination, then the Obama administration has at least a little more than two months left in office and is welcome to try. It is not as though the administration has shied away from the issue entirely: Justice Kagan has been obliged to recuse herself from this case because she worked on it as Obama’s solicitor general. (Guess which side.)
Substantial socioeconomic differences persist between black Americans and the rest of the country — differences that are not going to be sorted out by rigging the admissions processes at flagship universities or elite law schools. It is time to close the book on official racial preferences and return to the colorblind standard set by the Civil Rights Act of 1964, consistent with our constitution and our national ethic.