In the short term, today’s Fisher ruling is a loss for the University of Texas and for supporters of racial preferences in university admissions, because an appellate-court ruling that upheld such discrimination has been vacated and remanded. The Supreme Court said today that strict scrutiny means strict scrutiny, and that what the court of appeals did was not strict enough. The Court’s earlier decision in Grutter had also been criticized as not being strict enough, and so today’s decision amounts to a clarification of Grutter in that respect.
On remand, the High Court said the lower court “must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” For plaintiffs, this will mean challenging the extent to which considering race adds a benefit, when weighed against its inevitable costs. That is, if a nonracial admissions system would achieve similar benefits with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits. The Court said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “‘could promote the substantial interest about as well and at tolerable administrative expense.’”
And here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, their teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).
In short, the struggle continues against racial preferences, with another Supreme Court decision that should be helpful.
Finally, I should add that not only the ruling but also the runup to the ruling — in which it has become clear how increasingly unpopular and discredited racial preferences in admissions are — will result in some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination. At least, I hope so.