Conservatives are praising last week’s Supreme Court decision in Fisher v. University of Texas, which dealt a slight blow to affirmative action. The high court remanded a decision upholding affirmative action back to the trial court, with instructions to use a stricter standard of review, known as strict scrutiny. Opining for the majority in the 5-4 decision, Justice Anthony Kennedy held that in order for the University of Texas’s affirmative action program of race discrimination to be found constitutional, the university must prove that it has no feasible alternative to considering race in admissions. The Court didn’t go quite as far as reversing Grutter v. Bollinger, the 2003 case which upheld the University of Michigan Law School’s affirmative action policy.
The Supreme Court has been steadily backing away from upholding affirmative action laws, and this decision provided more evidence of that shift. Former Supreme Court Justice Sandra Day O’Connor, writing for the majority in Grutter v. Bollinger, famously predicted, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Her statement was both promising and disturbing, implying that our constitutional rights can come and go at the Supreme Court’s whim, instead of acknowledging that we are endowed with immutable rights.
But the Supreme Court’s gradual elimination of affirmative action may be ineffectual. Universities and government agencies are finding ways to get around the restrictions. Instead of admitting the existence of quotas, and listing them in writing, which the Supreme Court said was prohibited in Grutter v. Bollinger, government elites are finding more subtle ways to favor preferred minorities over whites and Asians.
The New York Times ran an article a little over a year ago investigating this. Immediately after initiatives were passed in several states banning race preferences, minority enrollment in those states’ top public universities decreased. However, it went back up again, as the universities found ways around the bans. Hispanics accounted for 14 to 15 percent of the students at the University of California before Prop. 209 was passed in 1996. Their numbers dipped down to 12 percent in 1998. But by 2010, Hispanics accounted for more than 22 percent of incoming freshmen.