On the surface, the Supreme Court's decision today to bounce a case challenging affirmative action in college admissions back to a lower court was anti-climactic. The majority ruling merely held that the Fifth Circuit Court of Appeals had not used a sufficiently stringent level of judicial scrutiny when examining the justifications that University of Texas gave for its current policies, which help boost racial diversity on campus.
But the subtext is much more interesting, and Fisher v. University of Texas — a case brought by a white student, Abigail Fisher, who claims she was denied admission on the basis of race to UT — likely marks the beginning of the end for the system of racial preferences currently being used by major universities across the country.
Writing the majority opinion, Justice Kennedy, clearly no longer moved by the classic justifications, specified that the Fifth Circuit Court needs to "verify that it is necessary for a university to use race to achieve the educational benefits of diversity" — language that can't be regarded as friendly to the soft system of racial preferences that has prevailed in recent years in college admissions. The apparent skepticism among at least seven Supreme Court justices matches the changing social climate around the issue. In the ten years since the Supremes last took up the matter, studies are increasingly showing that preferences based on socioeconomics — instead of solely on race — yield strong benefits for minorities and have much better support among the American people.
Still, today's decision will likely be deemed “conservative.” In the coming days, don't be surprised to hear the word resegregation thrown around by the chattering classes.
However, any hue and cry over the impending dismantling will come from people unaware of how almost opaquely coded our discussions of racial preferences have become. When we peel away the buzzwords, rhetoric, and accreted meanings and view the issue plain, it is the standard defenses of these preferences that are racist. Whatever else you might hear in the coming days, the Supreme Court judges — all of them except dissenter Ruth Bader Ginsburg and Elena Kagan, who recused herself — are continuing the civil-rights revolution, not turning it back.
To understand why, we must get past a first misleading usage: In general discussion, racial preferences tend to be characterized merely as a systematized way of “taking race into account.
But the phrase “taking race into account” — hazy of meaning, used more for manipulation than reasoning — implies that schools are simply using skin color as a factor in choosing among a pool of students who have all achieved a certain level of success on their academic records and on standardized tests. Almost no one would complain about this kind of “thumb on the scale.” Anyone who did wouldn't get much purchase in the public discussion.
No, the real source of the controversy is that schools regularly admit black and Latino students with qualifications well below what would be required of a white or Asian student. This, where points for being a pretty color inherently mean that one is admissible with fewer points for scholastic achievement, is the practical reality of "taking race into account" and has been documented at the University of California, the University of Michigan, and several other schools over the past twenty years.
This practice was justified when first instituted in the late sixties. Open bigotry and entrenched segregation were still vivid realities. Being black was a burden regardless of socioeconomics. In 1960, about half of black Americans lived below the poverty line. Few were being educated with college in mind.
Black people deserved a leg up, so much so that there was a moral case for changing the rules. But only for a time.
Because racial preferences can be as toxic as they can be beneficial. Affirmative action should be applied like chemotherapy — as quickly and narrowly as possible, because of the damage it does amid the healing.
Inevitably, whites — especially ones living far-from-comfortable lives in this vastly unequal nation — come to chafe at racial preferences. Inevitably, blacks chafe at always being suspected of being let in through the back door. Inevitably, the system quietly creates a sense that tip-top scholarly performance is something separate from the essence of being black or Latino.
For a matter of decades, all of these drawbacks were a minor consideration compared with the awesome progress that racial preferences afforded black America.
But 40 years is enough. There is now a solid black middle class; three in four black people are not poor. Plus, much of what keeps black and Latino students’ grades and test scores down is poor schooling. And the sad fact is that it is only when racial preferences are threatened or discontinued that states and universities start the real work of helping less-fortunate students of color qualify for selective universities, as happened in California after preferences were banned in 1996.
Many, however, insist that racial preferences should have no expiration date, or at least not one most of us will live to see. Ironically, their arguments for this are cold-blooded insults to black America.
Racial preferences began as a response to black poverty. But today they mainly benefit the black middle class — and anyone who implies that to be black is to be poor is called a racist.
So preferences can no longer be defended as a policy aimed at a people who are mostly poor or, by definition, close to it. How about that black and Latino students must be subject to lower standards because they lend classrooms diversity? Let’s look a black student in the eye and say the reason he or she has been admitted to a school is by virtue of being "diverse."
I shudder to imagine my daughter submitted to lower evaluation standards because she’s brown and can teach her white peers something on that basis.
Overall, there is a larger argument often heard: Racial preferences must stay in place because racism still exists. Because “race matters in this culture,” Columbia Law School’s Patricia Williams argues, it is “not merely hypocritical but foolish” to discontinue racial preferences in admissions.
But we can assume that racism will never be entirely absent in this country, and it profoundly underestimates black people to imply that we can only excel under ideal conditions. To make this argument burdens black and Latino students with exactly the low expectations we otherwise rightly call bigotry.
Besides, once we reached this mythical racism-free moment, there would still be the massive socioeconomic inequalities that dismay us all.
That's why it is right not to do away altogether with the framework of affirmative action — but rather to direct preference on the basis of class.
As the Century Foundation’s Richard Kahlenberg and others have shown (pdf), a properly applied class-based preference regime would also benefit students of color and, specifically, the ones growing up with severe disadvantages — as opposed to the middle-class blacks and Latinos that universities prefer to admit today because they are less expensive.
After almost 50 years of race-based preferences, with the underclass becoming an increasingly cross-racial group, it is logical, fair, and progressive that affirmative action now address inequality rather than skin color.
The Supreme Court is, this time at least, doing its job. Those unable to see that are letting bias and habit blind them to the contours of history and what movement forward really is.