The Supreme Court has now heard oral arguments in a case—Fisher v. University of Texas—in which it is likely to overrule or eviscerate its own 2003 decision in Grutter v. Bollinger allowing limited “affirmative action” plans in public institutions of higher education. These are admissions policies through which universities seek to increase the number of qualified minority students in their classes by counting their race as an advantage in choosing among the large number of well-qualified candidates, all of whom they cannot admit. I believe that affirmative action is of great value to American society generally, but the five ultraconservative Supreme Court justices are widely expected to seize this opportunity to outlaw it. Chief Justice John Roberts, in his opinion in an earlier case, made his position clear. “The way to stop discrimination on the basis of race,” he said, “is to stop discriminating on the basis of race.”
Abigail Fisher, a white applicant who was denied admission to the Austin campus of the University of Texas, claims that the university infringed her constitutional rights because it has a policy, based on the principles approved in Grutter, of taking race into account as one factor. She does not claim that her SAT scores or her academic record were good enough to admit her under a standard that was neutral with respect to race. She insists only that her constitutional rights were denied just because the standard was not race-neutral.
Judging from the oral arguments, the five conservative justices are likely to agree: they are likely to declare that the Constitution, in principle, demands color-blind criteria for admissions and that Texas has not shown that its racially sensitive standards for admission serve any goal that is sufficiently urgent to override that constitutional right. In order to test this legal claim, we need a brief review of the Court’s recent jurisprudence of race. In a series of historic decisions in the 1950s and 1960s, including its 1950 Sweatt v. Painter decision requiring the University of Texas School of Law to accept black candidates, its 1954 Brown v. Board of Education decision outlawing racial segregation of public schools, and its 1967 decision in Loving v. Virginia prohibiting laws banning interracial marriage, the Supreme Court ruled that public institutions that discriminate against blacks deny them the equal protection of the law.
We can justify these early decisions on either of two different theories, and the difference between them is of the utmost importance. We might say that they rest on a constitutional right not to suffer from official prejudice or stereotype. Or we might say that they rest on a very different right: that public institutions must always be color-blind in their decisions. Both these supposed rights would justify the early decisions. But the first justification—that …