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Race Matters at the Supreme Court

David Cole
The evidence that race still matters in twenty-first century America is overwhelming. The question of whether race may even be taken into account to redress the country’s problems, however, was front and center on Wednesday, when the Supreme Court once again considered the constitutionality of affirmative action.
Supporters of affirmative action, during the first Supreme Court hearing of the University of Texas case, in Washington, D.C., October 10, 2012

Pete Marovich/Corbis

Supporters of affirmative action, during the first Supreme Court hearing of the University of Texas case, in Washington, D.C., October 10, 2012

The evidence that race still matters in twenty-first century America is overwhelming. It includes the police killings of Eric Garner, Laquan McDonald, and countless other young black men; the passionate student movement for racial justice that is sweeping college campuses; the continuing glaring racial disparities in employment, income, incarceration, and life expectancy; and Ta-Nehisi Coates’s much-heralded account in Between the World and Me of the extent to which American institutions have helped to create and perpetuate these inequities. At the Supreme Court, however, there is growing ambivalence about whether race may even be taken into account to redress these problems. That question was front and center on Wednesday, when in Fisher v. University of Texas, the Supreme Court once again considered the constitutionality of affirmative action. Only one member of the Court did not tip his or her hand at argument, but that member is Justice Anthony Kennedy, and he holds the decisive vote.

“The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” This view, espoused by Chief Justice John Roberts in a 2007 decision invalidating Seattle’s effort to maintain integrated public schools by taking race into account in making pupil assignments, looms large this week as the Court, for the second time in three years, reviews the constitutionality of the University of Texas’s affirmative action plan. Two years ago, the Court vacated a lower court decision upholding the plan, reasoning that the lower court had been too deferential to the university. That the Court has taken the Texas case again, after the lower court upheld the program once again, is not a good sign for affirmative action proponents.

Most court watchers expect the Court to overturn the lower court’s decision, and question only whether it will do on so on broad grounds, calling into doubt all affirmative action programs, or on narrow grounds specific to the Texas case that will permit other affirmative action to survive—at least for now. Either decision, however, would be at odds not only with the underlying purpose of the Equal Protection Clause, but also with fundamental conservative values. (A third possibility emerged at oral argument: another remand, this time for the University of Texas to offer more detailed evidence in support of its plan. Justice Kennedy asked several questions about such a remand, which would likely put off a definitive ruling for another several years.)

If race continues to matter, then ignoring it will not solve the problem. Yet that is precisely what Chief Justice Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito read the Equal Protection Clause to require. According to Roberts’s vision of equality, in which a color-blind society can apparently be willed into existence by simply closing one’s eyes to race, any affirmative action plan is invalid. Justice Thomas was, as usual, silent at oral argument, but the other three made their skepticism absolutely clear; it is unlikely they will ever see an affirmative action plan they can abide.

Thus far, however, the Roberts vision has been a minority view on the Court when it comes to university admissions, but just barely. The Court has upheld affirmative action in university admissions, generally by 5-4 votes, as long as: (1) the university considers race-neutral alternatives; (2) avoids quotas; and (3) treats race as only one modest consideration among many in assessing an applicant. The Court upheld such a plan most recently in 2003 in Grutter v. Bollinger, a challenge to the University of Michigan Law School’s affirmative action program.

The specific issue in the Texas case is whether, having achieved a degree of black and Hispanic enrollment through a race-neutral “top 10 percent plan”—in which every student in the top 10 percent of his or her Texas high school class is automatically granted admission to the University of Texas—it is also permissible to consider race in deciding whom to admit of the remaining applicants. About 75 percent of the Texas class gets in through the 10 percent plan. Texas argues that in order to ensure a truly diverse student body, it needs to take race into account in selecting the remaining 25 percent, though only as one of many attributes that weigh into its decision, just as Michigan Law School did. In fact, Texas’s program, which was created in 2004, was designed to mimic the Michigan Law School program upheld in Grutter.

Because so many of Texas’s high schools are racially segregated, the 10 percent plan results in the admission of not insignificant numbers of black and Hispanic students. (Paradoxically, the 10 percent plan’s achievement of minority enrollment depends upon the existence of segregated high schools, and would not have this effect in states with integrated high schools). The entering class in 2004, when UT employed the 10 percent plan without any additional consideration of race, was about 21.5 percent black and Hispanic. The challengers argue that this should be deemed sufficient, and that any consideration of race is therefore unwarranted. (The state population is about 50 percent black and Hispanic).


The university replies that while the 10 percent plan admits some minority students, it does not produce the range of students necessary to realize the full educational benefits of diversity. The bulk of the black and Hispanic students admitted under the 10 percent plan attended racially segregated schools and grew up in segregated neighborhoods. Other black and Hispanic applicants, who live in integrated communities or attend integrated schools, might offer distinct perspectives. Moreover, because the 10 percent plan considers only class rank, it allows for no consideration of a student’s full contribution to campus diversity. The school maintains that it has an interest in attracting a wide range of students of every race with distinct interests, talents, and backgrounds. Such “diversity within diversity,” it argues, helps counter the stereotypes that continue to plague American culture.

When the Texas case first came before the Court, in 2013, the Court waited an inordinately long time after argument before issuing its decision, suggesting that there was some difficulty in reaching consensus. In the end, Justice Anthony Kennedy wrote a very narrow decision for seven justices, making no new law and merely sending the case back to the court of appeals for reconsideration. According to the majority, the lower court had applied too deferential a standard of review to the question of whether the Texas program satisfied the “strict scrutiny” that the Court requires for race-conscious official action. Only Justice Ruth Bader Ginsburg dissented. (Justice Elena Kagan was recused, because she worked on the case while earlier serving in the Justice Department.)

In 2014, the lower court, applying more stringent review, once again upheld the program. It found that while the 10 percent plan provided some measure of diversity, it did not achieve the “critical mass” that the university had determined necessary to obtain the educational benefits of diversity. The lower court stressed that the admissions office’s consideration of race, as in the Michigan case, did not employ quotas and was part of a holistic review of applicants in which race was only a modest factor.

There are several reasons why the Court might be reluctant to issue a broad decision ending affirmative action now, as uncomfortable as the conservative justices are with the practice. For one, in the 2003 Michigan affirmative action case, the Court said that while it may need to revisit the question in twenty-five years, affirmative action of the modest kind employed by the University of Michigan Law School (and today by the University of Texas) would be appropriate until then. To reverse that decision now, just midway through the period explicitly set down by the Court itself, would upend settled expectations, as virtually every institution of higher education employs an approach styled on that upheld in Grutter.

Second, to declare an end to affirmative action now, as racial controversy permeates American life, on campus and off, and as videos increasingly capture the unfortunate reality that race still very much matters in America, would be remarkably tone-deaf. It would also likely drastically reduce black and Latino enrollment at many of the nation’s best universities—even as those universities themselves, including Yale and Brown, are acknowledging they need to do more to encourage diversity. Does the Court really want to mandate an all-white-and-Asian Ivy League? Is that what the Equal Protection Clause, enacted to protect the newly freed slaves, was meant to accomplish?

Third, the American establishment is fully behind affirmative action. Friend-of-the-court briefs supporting Texas have been filed by the nation’s best universities, most successful businesses, the American Bar Association, the Association of American Medical Colleges, and an impressive group of retired generals and admirals, all attesting to the continuing need for affirmative action. Will the conservative justices be willing to buck such a consensus?

Thus, a narrow defeat of the Texas plan seems more likely. But even a narrow decision to overturn would be deeply problematic. If it was constitutional for Michigan Law School to consider race as a modest factor for all of its applicants, why should it be unconstitutional for the University of Texas to do the same for only about one-quarter of its applicants? Should the university be penalized for having adopted a race-neutral admissions plan, even if it finds that it was insufficient to achieve meaningful diversity?

Moreover, to hold that the 10 percent plan achieved “enough” diversity because it produced a class that was 20 percent black and Hispanic is to do exactly what the conservatives most condemn when they object to racial quotas. It reduces the issue to raw racial numbers. The fact that there are 20 percent black and Hispanic students does not necessarily mean that the school has achieved the quality of diversity that furthers its educational mission. The university makes a strong case that a more comprehensive consideration of those applicants who do not get in under the 10 percent rule, including consideration of race, is necessary to achieve effective diversity.


Finally, to remit the University of Texas, and presumably other schools as well, to programs like the 10 percent plan would be perverse. No admissions office would adopt a 10 percent plan except for the fact that it increases minority enrollment where many of the state high schools are segregated. Otherwise, it’s a terrible way to make admissions decisions, as it reduces students to one number—their class rank—at the expense of all other attributes, including test scores, extracurricular activities, essay writing abilities, special skills or experiences, leadership qualities, hardships overcome, and the like. There is no reason to believe that a high school senior in the top 10 percent of her class is more deserving, or would add more to the university community, than another student who was in the next 10 percent but overcame significant hurdles, was president of her class, editor of the school paper, or a fantastic gymnast who devoted thirty hours a week to practice. The 10 percent plan reduces students to numbers—and one specific set of numbers at that.

The Court’s affirmative action jurisprudence has always been predicated on the importance of considering the whole person. Notwithstanding the Court’s deep divisions on the ultimate issue of affirmative action, everyone, conservative and liberal alike, agrees that each applicant deserves to be considered holistically. To strike down Texas’s program would be to substitute the judgment of five justices, based on nothing more than raw racial numbers, for the academic assessment of a university grounded in the importance of considering its applicants fully, in all their glorious diversity.

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