Should institutions of higher education be allowed to engage in affirmative action programs that extend certain privileges to minorities, specifically African-Americans and Hispanics? Though that issue has been left unaddressed in the presidential campaign, it will be center stage at the United States Supreme Court on October 10. In the highly anticipated case of Fisher v. University of Texas, Abigail Fisher, a white woman who was denied admission to UT Austin’s campus in 2008, protests the admissions procedures that she claims vaulted less qualified minority students into the university ahead of her.
Affirmative Action in Texas
UT’s admission policies are, in large measure, a response to the 1996 decision of the Fifth Circuit in Hopwood v. Texas, which struck down the school’s explicit racial preferences in admissions decisions on the ground that diversity in education did not count as “a compelling state interest.”
Hopwood prompted a swift reaction: The Texas legislature approved a program that finessed Hopwood, making it mandatory for all UT campuses to automatically admit all Texas high school seniors who finished in the top ten percent of their class. The explicit rationale for the law was that it would boost the percentage of minority students in the UT system. That is just the way the results played out, as exhaustively documented in the Fifth Circuit Fisher decision, which narrowly upheld the plan.
In addition to the top ten percent requirement, the UT schools also adopted, for the remainder of their admitted classes, a complex system that relies on a set of “Academic and Personal Achievement Indices” which let the schools make “a holistic, flexible, and individualized” evaluation of any applicant who did not secure admission under the ten percent plan.
That program was put in place in order to comply with the Supreme Court’s 2003 decision in Grutter v. Bollinger. Grutter allowed the use of such determinations, even as it constitutionally frowned on any automatic procedures that just added a certain number of points to an applicant’s profile—a practice struck down in the companion case of Gratz v. Bollinger because it was not “narrowly tailored” to the state’s interest in diversity.
These precedents expose the Texas system to constitutional attack, given that the ostensibly race-neutral automatic admission policy is just a long-standing ruse to get around Hopwood. Automatic admission means that the majority of students are not subject to the individual evaluations stressed in Grutter and Gratz.
The Supreme Court did not tolerate similar evasions when it dismantled segregation in the years following the 1954 decision in Brown v. Board of Education. The Brown Court took heed of the stirring lone dissent penned by John Marshall Harlan in the 1896 constitutional disaster of Plessy v. Ferguson, admonishing that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
Set up against this background, Fisher should be easy pickings, as demonstrated in Gerald Walpin’s recent op-ed in the Wall Street Journal, which argues that the customary justifications offered on behalf of the two-part Texas program do not have the close means-ends fit that is normally called upon to justify a racial classification in the teeth of a color-blind reading of the Equal Protection Clause.
Diversity along racial lines may be one way to advance the “professionalism” or “civic engagement” mentioned by the majority of the Court in the Fifth Circuit, but there are other ways too; admitting applicants from different family, regional, or economic backgrounds could easily prove just as significant.
Segregation vs. Affirmative Action
In my view, so long as the current constitutional framework is respected, the Texas program is likely to be struck down. The Texas law is a big mistake, for the color-blind standard of strict scrutiny, so applicable, should not apply here. It is commonly assumed that in constitutional law, the standard of review determines the outcome of the case. Few programs can survive “strict scrutiny” and few programs can be struck down under the vastly more lenient “rational basis” review.
There is little doubt that the domination of the political system in the first half of the twentieth-century by segregationists imposed a solemn duty on the Supreme Court—one which was too long neglected—to root out the racially discriminatory practices that had received their constitutional blessing in Plessy.
But affirmative action today arises in a wholly different political context: Institutionalized segregation is a thing of the past. The sociological underpinnings for strict scrutiny of affirmative action were simply absent in the patient give-and-take that led up to the affirmative action programs in Seattle, which the Supreme struck down in Parents Involved in Community Schools v. Seattle School District No. 1, by a narrow five-to-four vote.
In the modern context, that form of civic engagement is the only possible way to run a public education system. No legal bars keep large segments of the population from voting or participating in political debates. No goon squads kill, beat up, or harass any person who crosses a color line. No lawless sheriffs can use their arbitrary powers of arrest and punishment to keep dissenters in line. Whatever the merits of affirmative action programs, to compare them socially and legally to the segregation programs of old trivializes the sins of the old order, as tellingly conveyed in Isabel Wilkerson’s The Warmth of Other Suns.
Government as Manager or Government as Regulator?
In evaluating the Texas program, it is important to keep the context clear. Fisher asks only how the University of Texas should run its own system. It does not ask whether Texas could impose its own admission procedures on private institutions that prefer to follow other paths. There is an irreducible distinction between states seeking to tell private parties how to act and states seeking to manage those functions that, like education today, are regarded as properly within the public domain.
The Texas program should be struck down forthwith if it were imposed on private universities and colleges. I think that the same result should hold even if the state wished to impose a uniform color-blind standard on how private institutions choose their student bodies.
It may well be that Walpin can poke holes in the imperfect rationales that the University of Texas gives for its program. But if a local private college thinks that these rationales are compelling, it should shape its programs to meet its objectives. There are no monopolies, public or private, in education, so people who don’t like a policy are free to walk away or to denounce it. The harm principle does not cover any offense that outsiders take to the policies of any university.
As a public institution, UT cannot have the unbridled discretion given to private universities. Nonetheless, even public institutions must be given more discretion when it comes to running their education systems. Today, the boards of directors of corporations and associations are given the benefit of a “business judgment rule” when they act in good faith to balance competing interests. Today, virtually every private college and university in the land engages in some open or covert affirmative action program, usually with the strong blessing of faculty, students, administration, and alumni.
It is not credible to denounce these programs as an illicit effort to stack the deck against white applicants, many of whom support them. Instead, these universities and colleges struggle to make considered trade-offs between diversity and academic merit, as measured by grades and test scores, to produce the best institution they can.
Run on a decentralized basis, affirmative action programs are less vulnerable to capture by any doctrinaire group. Nor should we expect, or want, the same kind of affirmative action programs in all universities or colleges, or indeed in all programs within a given university or college. Just let water find its own level, so that a wholesome diversity of approaches can arise when separate institutions experiment with affirmative action programs. Lest one fear the return of traditional segregation, the risk of too much affirmative action is as great as the risk of too little.
Rethinking Affirmative Action
So long, therefore, as programs like that instituted by the University of Texas are found somewhere in the private sector, nothing in the Equal Protection Clause of the Constitution should forbid their adoption in public universities. Taking this position requires rethinking affirmative action from the ground up.
The first mistake starts with Grutter and Gratz. There is no reason whatsoever to insist that institutions of higher education go through any “holistic, flexible, and individualized” process to select their entering classes in order to create a desired level of racial diversity. The process is costly, and vulnerable to favoritism. It is likely to produce a weaker class than a far cheaper and more mechanical system that sets particular targets, or even quotas, for the class, and then takes the strongest students from each racial cohort by its customary admissions procedures.
Most admissions programs rely on a mix of these approaches, often reserving interviews and special evaluations for applicants that fall close to the line. Nothing in the Equal Protection Clause should interfere with an efficient process, and certainly no disappointed applicant has a vested right to a process that a college or university does not want to use for itself.
Ironically, the current Texas system is an outlier among college admissions schemes. In its effort to get around Hopwood, the Texas system suffers from the greater defect of preferring weaker minority candidates from small schools to the exclusion of stronger minority candidates from stronger schools, who happen to rank lower in their class. So at bottom, precisely because the program struck down in Hopwood makes sense, the current Texas program does not. Indeed, the current Texas system has no peer on the private side. The correct disposition of Fisher is to keep the misguided ten percent program—unless the Court is prepared to return to the traditional affirmative action program struck down in Hopwood.
All this is not to say that the world will be rosy when and if the Supreme Court backs off its unwise jurisprudence. But safeguards can be put in place. First, the good faith standard does not offer a university or college carte blanche. Obvious extremes, like Texas’s ten percent program, can be eliminated. Second, the Supreme Court should also insulate public colleges and universities from political pressure by requiring that all decisions on affirmative action be made at the campus level, not at the state level. Decentralization will increase choice and defeat orthodoxy.
These constraints are less than ideal, but they are enforced by other market sanctions against institutions that adopt bad affirmative action policies. These institutions have to balance considerations of academic excellence, attractiveness to prospective students, and alumni support, which is as it should be. There is no safe harbor on affirmative action, which is why the issue has proved so contentious.
But there is also no warrant for the Supreme Court to stick with its misguided jurisprudence that is at variance with the sentiments of the majority of American people on how best to run their public institutions.
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).