Unlike the ideological divide that continues over the issue of gay marriage and whether the most punitive provisions of the Voting Rights Act remain necessary nearly a half-century after the law was initially enacted, the justices' decision in Fisher v. University of Texas suggests they share the public's general suspicion of race-based preferences in college admissions.
In a 7-1 decision, the justices held that race is automatically suspect when used to grant special treatment for any group and is subject to the strictest standard of scrutiny. (Justice Elena Kagan recused herself from the case because she had participated as solicitor general in an amicus brief on the case at the lower court.) Fisher is only the latest in a long list of suits involving racial preferences dating back to 1978.
In 1996, the Texas legislature adopted a plan that guaranteed university admission to graduates of Texas high schools who ranked in the top 10 percent of their graduating class. The program was initiated as a race-neutral method of increasing diversity in the state's higher education system. And it worked -- increasing the number of black and Hispanic enrollees to 21 percent and Asians to 18 percent of students by 2004.
But the university claimed that the nearly 40 percent diversity achieved under a race-neutral plan didn't constitute a sufficient "critical mass" of minority students. Moreover, the university was especially concerned that the Top 10 Percent plan did not help more affluent black and Hispanic students who attended suburban or private schools but did not manage to graduate in the top decile to gain admission. So the university went back to giving explicit consideration to race in the application process, admitting some number of less qualified black and Hispanic students over better qualified whites and Asians.
While most conservatives would have preferred the court strike down as unconstitutional the use of race as even one among many factors in its admissions process, clearly seven justices would not have gone along -- and there may not have been even five votes to do so.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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