The following contribution to our Fisher symposium comes from Richard Thompson Ford, Professor of Law at Stanford Law School and author of Rights Gone Wrong: how law corrupts the struggle for equality.

A mere ten years after the Grutter and Gratz cases the Supreme Court has decided to again weigh in on affirmative action. Back in 2003 when Grutter and Gratz were decided, the fight over affirmative action was already getting stale: all of the arguments pro and con had been made dozens of times before and universities had already dramatically reformed their admissions practices to respond to concerns about fairness and inadvertent racial stigma.  As compared to earlier affirmative action cases, relatively little is really at stake in Fisher v. University of Texas at Austin.  There’s not a huge difference between considering race as one of many factors, as Grutter allows, and ignoring race but instead considering a host of social disadvantages that highly correlate with race, as the University of Texas did after the Fifth Circuit invalidated affirmative action in Hopwood and as the University of California has done since it was prohibited from considering race by Proposition 209.   Because the use of race in affirmative action has become subtler and because many universities have already developed reasonably effective race-neutral substitutes, university admissions will not change all that much no matter what the Court holds.  The Supreme Court didn’t add much in the way of clarity or wisdom to the national debate about affirmative action in 2003 and it can add even less today. What the Court can do is stir up old resentments that had begun to settle in the decade since Grutter and renew confusion among university administrators about what they can consider when selecting a new student body.  The Court should not have taken this case—having done so, it can serve the nation best by trying to limit the damage a new intervention will inevitably do.

Affirmative action remains a divisive and emotionally charged issue, less because of its practical importance than because it stands in for larger questions of racial justice and social mobility.  In a sense the warring sides in affirmative action controversies are not arguing with each other so much as talking past each other:  affirmative action’s defenders see it as an important part of the legacy of the civil rights movement; opponents care about upward class mobility and the fairness of university admissions policies as a general matter—an issue that goes far beyond race-based preferences.

Invalidation of affirmative action as a matter of constitutional law will mark yet another break with the civil rights tradition that began with Brown v. Board of Education and reached its high point with the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  That tradition was an explicit response to widespread and institutionalized racial prejudice. It did not condemn race discrimination as a matter of abstract principle—it condemned discrimination because it was one of the primary devices used by racists to defend racial hierarchy.  It followed that race consciousness was acceptable—even desirable—when used to attack racial hierarchy.  A complete repudiation of remedial uses of race would make it inescapable that the Constitution under the current Supreme Court is an enemy of traditional civil rights.

On the other hand there is the question of fairness to the individuals who don’t enjoy affirmative action preferences, and this brings us to the question of social mobility.  Admission to a selective university is one of the few reliable avenues to upward mobility in our increasingly class-stratified and unforgiving society.  Disappointed applicants zero in on race-based affirmative action because that’s all they can attack in court, but the larger issue is the fairness of university admissions policies generally.

The Supreme Court can’t answer these larger questions of fairness, social mobility and educational policy—it can only add to the rancor surrounding affirmative action and sow confusion over what’s legal and what’s not.  Let’s suppose the Court limits itself to the controversy actually presented in Fisher and issues a relatively narrow opinion.  The University of Texas achieved some measure of diversity without considering race, by using the Top Ten Percent Plan and other race-neutral considerations.  So the Court could hold that race-based affirmative action is unconstitutional whenever race-neutral policies can achieve an adequate degree of diversity.  But what would this mean in practical terms?  Does Texas have a compelling interest in more diversity than the Top Ten Percent Plan would achieve?  How much diversity is enough?   Does the answer vary depending on the university’s specific institutional mission, the demographics of the applicant pool, the pedagogical method employed or the specifics of the curriculum?  Is there some way to balance the state’s interest in greater diversity against the costs of explicit race consciousness?

Even if the Court could answer these questions for the University of Texas, how would the holding apply elsewhere?  A Top-Ten-Percent-style plan would be unworkable for selective universities that draw their student bodies from a national pool of schools of widely varying competitiveness.  Is every university obliged to try out some sort of formally race-neutral plan before resorting to race-conscious affirmative action?   Admitting students at random would be a race neutral method of achieving a diverse student body—could a selective university be required to do that instead of resorting to affirmative action?  Justice Thomas came close to suggesting this in his dissent in Grutter, in which he pointed out that the state probably does not have a compelling interest in operating an elite professional school or university at all.

Alternatively, the Court might issue a broader holding, overturning Grutter and banning affirmative action.   But this won’t settle anything either.  It will simply present basically the same controversies in new terms: universities that maintain diversity through purportedly race-neutral admissions policies will face lawsuits for secretly considering race (given current equal protection doctrine this will be almost impossible to prove, but that won’t stop people from trying.)   And even if the admissions criteria themselves are scrupulously color blind, if the reason for using a Top Ten Percent Plan or considering social disadvantage is to promote racial diversity, some will argue that such policies are just as suspect as explicitly race-conscious affirmative action.

Judicial intervention is appropriate when the political process isn’t working well—say when a despised minority group is shut out of the normal give and take of legislative negotiations or shunned in political debate.  But in the case of affirmative action there has been a robust political debate in which no one side has had an intractable advantage.  People like Abigail Fisher and Barbara Grutter aren’t political pariahs—they enjoy a great deal of public sympathy and can inspire political reform.  Voters in Texas are perfectly capable of forcing public universities to change their admissions policies, as voters in California did by banning affirmative action statewide with Proposition 209.  Moreover voters—unlike courts—can also address the larger questions of fairness in university admissions.  They could press for class-based admissions preferences, more transparent admissions policies, or changes to other questionable admissions preferences.  Or they can decide—as Texas’s politicians and voters apparently have—that, on balance, the existing policies are sound.

One might hope that the Court will redefine our nation’s commitment to civil rights and social justice, pointing the way forward with a bold yet nuanced new approach that responds to the unique challenges facing our class stratified and multi-racial society.  But even under the best of circumstances, such moments are rare and the efforts ultimately require the cooperation of the popular branches to succeed.  And the Court’s civil rights jurisprudence can hardly be described as the best.  Instead, the Court is simply a microcosm of the nation: the split between its liberal and conservative wings mirrors the popular division that has characterized racial politics since the mid 1970s.   On the one side there is a largely disingenuous advocacy of “color blindness” (disingenuous because the hard line against racial classification does not extend to, say police investigations, traffic stops, airport security, or the national census); on the other, a desperate attempt to save the crumbling civil rights détente of the Nixon era.  Posturing and hypocrisy abound on all sides, just as they have in every “national conversation” about race that has taken place in the last thirty years.   To put it bluntly, the Supreme Court has nothing to offer the nation with respect to affirmative action: it has no new ideas and the bare five-to-four majority likely to decide Fisher will not have the moral stature to even credibly propose, much less establish, a durable resolution to this decades-old struggle.  The Court can only whip up the old resentments and frustrations that a decade of quiet behind-the-scenes work by politicians and professional administrators at the state and institutional level had begun to subdue.

As unsatisfying as the mixed bag of current political solutions may be, any one of them is preferable to another confused “clarification” from the high court—or worse yet, a holding that gains in formal clarity only what it sacrifices in justice, common sense, and practicality.  The Court should have left this to the professionals: elected officials who are used to juggling public policy imperatives, symbolism, and interest group politics and university administrators who know something about pedagogy and the unique missions of their institutions.

Posted in Featured, Fisher Symposium

Recommended Citation: Richard Ford, Online Fisher symposium: Leave civil rights and college admissions to the pros—or the people, SCOTUSblog (Sep. 6, 2012, 6:10 PM),