On Wednesday the Supreme Court heard arguments in Fisher v. Texas, the most important affirmative action case in a decade. The Court is sharply divided on the question of the permissibility of racial preferences in university admissions, and the questions posed by the justices reinforced the possibility that Fisher will produce a 5-3 decision pitting five conservatives who want to severely restrict if not eliminate affirmative action in higher education against three liberals who want to preserve it. (Justice Elena Kagan is recused because she worked on the case as Solicitor General). But there is, in fact, a kind of middle ground on affirmative action that could unite the warring camps and produce the kind of narrow, unanimous opinion that Chief Justice Roberts prefers.
In oral arguments, the justices clashed on the question of how much diversity is enough. In the 2003 Grutter case, Justice Sandra Day O’Connor said that universities could use racial preferences to gain a “critical mass” of minority students that would help them achieve the educational benefits of racial diversity—including promoting cross-racial understanding and ensuring that minority students don’t feel isolated. But as Chief Justice Roberts and the other conservative justices emphasized, the Grutter Court never provided a clear way of identifying how much diversity is necessary to achieve a critical mass. “How am I supposed to decide whether you have an environment within particular minorities who don’t feel isolated?” Roberts asked.
In response, the university’s lawyer, Gregory Garre, said the Court should defer to the university’s judgment. Racial preferences had proven necessary, he argued, because a race-blind admissions program that granted automatic admission to students who graduated in the top ten percent of their high schools produced too many classes that had few or no minority students. The conservative justices seemed disinclined to trust the university, suggesting that its quest for diversity within each classroom was nothing more than subjective quota system by another name, a purportedly “holistic” review of each applicants’ credentials that was really a mask for unconstitutional racial balancing.
There is, however, a more objective way of measuring the possibility of achieving a critical mass of minority students within individual classrooms. It appears in a new book called Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, by the UCLA law professor Richard H. Sander and the journalist Stuart Taylor Jr. Most of the book is devoted to a policy argument against racial preferences, which, the authors stress, are much larger than universities are willing to acknowledge. Sanders and Taylor note that at the University of Texas, for example, which uses racial preferences after granting automatic admission to students in the top ten percent of their high school class, Asian students admitted outside the top ten percent system scored at the ninety-third percentile of nationwide SAT test takers in 2009; whites at the eighty-ninth percentile; Hispanics at the eightieth percentile; and blacks at the fifty-second percentile.
For many years, Sander and Taylor argue, it wasn’t clear whether large racial preferences benefited their recipients (by providing a positive peer group) or harmed them by subjecting them to what the authors call “mismatch,” where teachers aim their classroom instruction at median students and those with weaker preparations fall behind, learn less, and self-segregate into easier classes. But now, the authors claim in the book and in their Supreme Court brief, it’s clear that mismatch effects predominate: The beneficiaries of affirmative action are less likely to take classes and to graduate in science, technology, engineering and math (STEM), although in their initial applications, they expressed interest in those fields at rates similar to whites. For Sanders and Taylor, the lack of a critical mass of minorities in the STEMs classrooms isn’t something that can be remedied by affirmative action; it’s something that’s caused by it.
What are the constitutional (as opposed to the policy) implications of Sander and Taylor’s data? In the Grutter case, Justice Sandra Day O’Connor said that racial preference had to be “narrowly tailored” to achieving their purported goal. In particular, she stressed, “narrowly tailoring … requires that a race conscious admissions program not unduly harm any racial group.” The conservative justices, led by Clarence Thomas, may be inclined to seize on the mismatch data as vindication of Thomas’s longstanding view that affirmative action stigmatizes its beneficiaries and hurts those it was intended to help. (In his dissent in Grutter, Thomas warned of what he called the “mismatch crisis.”) But Sander and Taylor’s data are hotly contested; and universities and legislatures have reached the opposite conclusion about whether affirmative action helps or hurts its recipients, and whether it promotes or discourages diversity in individual classrooms. It would be the height of judicial activism—as aggressive as the activism the Court displayed in the Citizens United case—for the justices to substitute their own evaluation of the data for that of democratically accountable administrators and elected representatives.
A more modest approach would be for the Court to require universities that use racial preferences to be transparent about their criteria. As Taylor and Sanders note, the Court could require universities to disclose the size of their preferences as well as the academic performances and post-graduation employment of past students with similar academic credentials. “Narrow tailoring requirements are largely meaningless without full disclosure of the operation and effects of preferences,” the authors note. “How can one minimize the harm of racial preferences to the minorities that receive them without providing information that allows prospective students to understand their likely outcome at schools that do and do not use racial preferences?”
The Grutter decision itself, unfortunately, provided an incentive for universities to be opaque, rather than transparent. In holding that the University of Michigan Law School’s affirmative action program was constitutional while that of the undergraduate college was not, Justice Sandra Day O’Connor stressed that universities should engage in “holistic” review of all the ways that applicants might contribute to a diverse environment, as opposed to using a mechanized “point” system that gave “mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity.” But Sanders and Taylor note that subsequent studies have challenged O’Connor’s assumption that secretive “holistic” review would lead to smaller and less mechanical preferences than a transparent point system. By making clear that universities can only use racial preferences if they do so transparently, the conservative justices could join forces with Justice Ruth Bader Ginsburg, who defended transparency in her dissenting opinion in the Gratz case. “If honesty is the best policy,” she wrote, “surely [an accurately described, fully disclosed … affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.”
By remanding the case with directions to the University of Texas to be transparent about the size, duration, goals, and effectiveness of its racial preferences, the liberal and conservative justices could grant university administrators, rather than unelected judges, the opportunity to offer an objective standard for measuring what constitutes a “critical mass” of minority students. If it turns out, after several years of additional racial preferences applied on top of the Ten Percent Plan, that the University of Texas’s classrooms remains as self-segregated as before, then the mismatch thesis will be largely confirmed and the premise of Grutter – that affirmative action leads to diversity in the classroom – will be disproven. The conservative justices might then persuade their liberal colleagues to hold that affirmative action is not achieving its intended goal of promoting classroom diversity.
If the opposite turns out to be the case, however, then the liberals might persuade the conservatives to join them in upholding limited racial preferences that actually achieve their stated objectives. Either way, the Court could base its decision on bipartisan evidence rather than partisan ideology, and avoid the party line divisions that Chief Justice John Roberts so successfully averted in the health care opinion last June.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.