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Affirmative Action's Road Doesn't Pass Through Perfection

Look for another workaround in case the Supreme Court goes negative on affirmative action.
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The United States Supreme Court building. (PHOTO: CC-BY-SA-3.0/MATT H. WADE)

The United States Supreme Court building. (PHOTO: CC-BY-SA-3.0/MATT H. WADE)

The U.S. Supreme Court is expected to issue an opinion soon on the first affirmative action case it has heard since mumbling (or not) its way through a decision on the Grutter v. Bollinger case a decade ago. The justices heard arguments in Fisher v. University of Texas at Austin last October. The plaintiff, a spurned white applicant to UTA, argued that including race, even tangentially, in its admission process was a violation of the 14th Amendment. Were a court majority to agree, it would essentially overturn Grutter, which had allowed race to be included in a basket of admissions standards even as the justices held their noses: "The Court takes the [University of Michigan] Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable."

In a recent conversation with Stephen Joel Trachtenberg, D.C.-based writer John Greenya asked the president emeritus of The George Washington University about his take on the latest effort to countenance a nettlesome solution to an even more nettlesome problem. Trachtenberg, whose extracurricular activities have included writing the books Big Man on Campus: A University President Speaks Out on Higher Education and A Letter to the President of the United States on Higher Education, told Greenya he was surprised when the court even agreed to hear Fisher, since Grutter essentially “put the issue to bed” for a while:

 I was hopeful that the debate over affirmative action was resolved when the Supreme Court handed down its decision in the Grutter case in 2003, when it said we think we ought to go along with affirmative action for about 25 years and then we ought to take another look—and, hopefully, in that 25 years things will change in the country and make affirmative action unnecessary because even people who agree with affirmative action are a little uncomfortable about whether it’s completely, completely in compliance with the Equal Protection Clause of the Constitution.

But the impulse to treat affirmative action like a single malt Scotch, hoping that leaving it untouched in the corner would improve its floral notes and mellow any harshness, faded with a second term for Barack Obama.

I think they’re taking another look because they have a voting majority of five who have been unhappy about affirmative action and skeptical of its virtues for some time. And now that they have the votes they’re going to resurrect the issue.

Nonetheless, Trachtenberg predicts that while affirmative action may take some lumps from the five (or four, since Justice Anthony Kennedy is considered a swing vote and presumably pro-AA Justice Elena Kagan has recused herself) but won’t go down for the count:

If the court were to do away with [affirmative action] forever—which I don’t think they’ll do; they may soften it—there are other ways that universities can accomplish much of what affirmative action was designed to do, for example, a socio-economic test. I developed scholarships at George Washington University for residents and high school graduates of the District of Columbia schools. Well, it won’t shock you if I tell you that you don’t get a lot of Scandinavians coming out of D.C. schools. They tend to serve a largely African-American population. And if you create scholarships for outstanding students you’re going to get outstanding students who frequently are black—but you’re also going to get whites and Asians and Indians and whatever. And God bless ‘em all.

I’m not one of those people who think the search for perfection allows us to drive out the good. I think there’s a lot of ways to head toward Rome.

Meanwhile, Texas legislators are making contingency plans should Fisher not go their way. The state already offers 75 percent of the spots in the University of Texas system to the top 10 percent of its high school graduates. Without intervention, if the "holistic process" for the remaining 25 percent should be deemed unconstitutional, then 100 percent of the spots would go to the top 10 percent.

If you want to make your own guess at how the High Court will rule, click here for the 98-page transcript of the oral arguments.