The governance model that has led to this dysfunction in legal education must be replaced.
Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Yesterday, the Court listened to argument for a second time in Fisher v. University of Texas. Far from “fixing” higher education in Bakke, the Court has generated nearly 40 years of litigation over affirmative action. Two states figuring prominently in that legacy of litigation—California and Michigan—have enacted laws prohibiting the use of racial criteria in college admissions. This is ironic because UT relies on the Grutter v. Bollinger (2003) decision—involving the University of Michigan—to justify its use of racial preferences in admissions. Voters in Michigan effectively overruled Grutter in a 2006 referendum that was upheld by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action (2014).
At UT, the higher education bureaucrats have forfeited their credibility when it comes to the “need” for diversity on campus. During the interval between the Fifth Circuit’s decision in Hopwood v. Texas (1996) and Grutter, UT was forced to abandon its use of explicit racial preferences in admissions. To maintain demographic diversity in the student body, the Texas state legislature adopted the so-called Top Ten Percent Law, which granted automatic admission to the top 10% graduates of all high schools in Texas. This created a diverse student body at UT, but when the Supreme Court disapproved of Hopwood (which had banned the use of race altogether) in Grutter, UT immediately resorted to a race-conscious “holistic” process to supplement the Top Ten Percent Law. Abigail Fisher, a white applicant who was denied admission at UT in favor of less qualified minorities, sued to challenge the use of racial preferences.
UT defended its “holistic” admissions process, all the way to the Supreme Court, by claiming that it was carefully crafted, diligently administered, and rigorously reviewed. Further complicating matters, though, for the credibility of the state’s flagship university when it came to admissions was the discovery that UT President Bill Powers was routinely interfering with (and even overruling) the admissions office to ensure the acceptance of unqualified applicants who happened to be friends or family of influential donors or legislators. When the scope of Powers’ cronyism was uncovered, a scandal ensued and he was forced to resign. The Kroll Report concluded that Powers and his chief of staff had “misled” a previous inquiry and “failed to speak with the candor and forthrightness expected of people in their respective positions of trust and leadership.” In other words, they lied.
Texas and other states that have not banned racial preferences in college admissions deal with the consequences of Bakke and Grutter: Higher education administrators operating an opaque admissions process that dishonestly strives for racial and ethnic quotas while claiming not to; systematic discrimination against highly-qualified Asian applicants who would be “overrepresented” in a purely meritocratic process; and the creation of disgruntled populations of minority students who, because of academic “mismatch,” become frustrated and resentful toward the very colleges and universities they are attending due to well-intentioned preferences.
The results of the nearly 40 year experiment with affirmative action in higher education are clear—it is a failure. The Supreme Court in Fisher II should overrule Grutter and embrace the principle of a color-blind Constitution. Race discrimination in public college admissions is wrong and should be forbidden, once and for all.