The Remarkably Feeble Fisher Opinion

After the death of Justice Scalia, most people who have been following the protracted Fisher v. University of Texas case (myself included) expected that the Court would let the university’s racial preference system stand. It did that in a 4-3 decision released on June 23.

Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. (Justice Kagan had recused herself.) So even if Justice Scalia had still been alive, the Court would have upheld the Fifth Circuit’s ruling that the racial preferences the university uses to achieve “diversity” are constitutionally acceptable.

Writing for Competitive Enterprise Institute, lawyer Hans Bader skewers the decision, which approves a governmental policy that “discriminates against white and Asian applicants” and “gullibly deferred to a university’s pretexts for using race….”

I want to focus on those pretexts.

Bear in mind that the Court has in the past held that if a governmental institution is going to use racial categories, it must show a “compelling interest” in doing so and that there are no racially neutral ways of accomplishing it. Also, courts are expected to look at such plans and purported justifications with “strict scrutiny.”

In Fisher, the University of Texas claimed that it needed to use racial preferences in order to:

Bring about the destruction of stereotypes.

Promote cross-racial understanding.

Prepare a student body for an increasingly diverse workforce and society.

Cultivate a set of leaders with legitimacy in the eyes of the citizenry.

Lamentably, rather than carefully analyzing those reasons, the majority justices were content with, in Bader’s words, “blind deference masquerading as strict scrutiny.”

Let’s examine those four justifications one by one.

Supposedly, UT needs to discriminate against whites and Asians and in favor of students who are regarded as “representing” an underrepresented group because otherwise considerable numbers of its students would go through college with the racial stereotypes they harbor intact.

We are supposed to believe, therefore, that the state’s flagship university, with its high admission standards, nevertheless has found that quite a few students harbor racial stereotypes. These are very intelligent young people who have grown up in the wired world, in a country with a black president and great numbers of conspicuously successful people from all races and ethnic groups, and have in their schooling heard teachers sing the praises of tolerance and multiculturalism – and yet many hold to racial stereotypes!

I would love to know exactly what those students believe about all our various racial and ethnic groups. Presumably the university does, because it feels the need to combat their stereotypes.

I would also like to see the university’s evidence that students drop all their bad stereotypes as a result of being on a “diverse” campus – or to be more precise, a campus made marginally more diverse due to the policy of favoring students from certain groups. (After all, quite a few minority students are accepted without preferences.) Certainly the university has carefully studied how the attitudes of its students change over their years and has proof that stereotypes are overcome.

Actually, I doubt it. This is merely a pretext.

Second, the university claims that its increased diversity enhances “cross-racial understanding.” That makes it sound as if UT officials believe that there are distinctive thoughts and beliefs for the different racial groups they recognize – that students in each of those groups just aren’t able to “understand” students from the others unless the school is allowed to admit some additional black and Hispanic students under its policy.

That just isn’t credible. Nearly all of the students admitted to UT are American teenagers who have grown up in our culture. They mostly like the same things, no matter what their racial background. Now, it’s true that there are disagreements among individuals, but they have nothing to do with racial misunderstandings. Two white students might disagree vehemently over abortion; two black students might disagree vehemently over immigration policy; two Asian students might disagree vehemently over “affirmative action.”

And if this is anything other than an excuse concocted to defend the policy, Texas must have proof that by the time students graduate, they have substantially less “racial misunderstanding.” Such proof, however, has never been adduced.

What about the supposed need for a workforce that’s prepared for a diverse society?

To take this justification seriously, you’d have to believe that whether or not the nation’s workforce can adapt to “diversity” depends on letting UT (and other universities) discriminate in favor of a few minority students while turning away an equal number of whites and Asians.

Even if you think “diversity” improves the ability of students at a school to learn how to deal with people from other groups, all that racial preferences do is to move a few more minority students to one campus, which means fewer of them at other campuses. There is no net gain in college “diversity” when UT-Austin accepts a few more black and Hispanic students, who would otherwise have enrolled at other schools.

But there is no reason to believe that the marginal increase in diversity at any campus is essential to preparing students for a “diverse world.” Intelligent people have always figured out how to deal with people who are different, with or without the “optical diversity” (a phrase used by Professor Sheryll Cashin, who argues in favor of dropping racial preferences in favor of socio-economic preferences for students from poorer families) they’re treated to at a few prestige universities like UT.

If you doubt that, consider the Japanese. Their universities are notable for their lack of diversity and yet the Japanese are famous for their world-wide success in dealing with people who are different.

Lastly, it is true that UT needs racial preferences so that its graduates can become leaders viewed as “legitimate” by the citizens of the state?

To believe that, you’d have to think that many Texans wouldn’t regard their elected officials as “legitimate” if they hadn’t graduated from a university where the student body had been chosen to ensure “enough” blacks and Hispanic students and not “too many” white and Asian students.

That also strains credulity. People have many reasons for favoring or disfavoring candidates, but nobody decides that a candidate is not “legitimate” unless he or she has graduated from a college with a properly diverse student body.

And if that were true, where is the evidence that Texan leaders who did not graduate from schools using racial preferences have a “legitimacy” problem?

Suppose that Fisher didn’t involve a university using racial preferences in its admissions, but instead a corporation using them in its hiring. Can you imagine the reaction of judges if the company tried to justify a discriminatory hiring policy by saying, “We believe that our customers would lose confidence in our products if they thought our workforce had too many minorities”?

That argument would be laughed out of court.

But racial discrimination for “diversity” is judged by different standards. It’s one of those preoccupations of academic liberals and liberal justices won’t deprive them of it. We will have to look to voters, legislators and university trustees to do that.