Another Twenty-Five Years of Affirmative Action?

The Obama administration has filed a brief with the fifth U.S. Circuit Court of Appeals in Fisher v. University of Texas, a case involving the use of racial preferences in the admission of undergraduate students at UT Austin. The brief was filed in opposition to plaintiffs in the case, two white students who claim that they were denied admission to the university on the basis of "holistic" evaluation that included a weighing of racial factors. The university, for its part, does not deny that race is employed as a factor in admission: It has publicly embraced a policy whereby one-fourth of each entering class is admitted on the basis of factors that include racial background.

Regardless of the appeals court ruling, it seems all but certain that this case will be appealed to the Supreme Court. It will be up to the Court whether it wishes to revisit its 2003 ruling for Grutter v. Bollinger, in which it ruled 5-4 that race could be utilized as a factor in admission of students to the University of Michigan law school. In that case, Justice Sandra Day O'Connor, who was viewed as casting the deciding vote, noted that a "tailored use" of racial criteria did not violate the equal protection clause if that use served a "compelling interest." As Justice O'Connor admitted at the time, racial preferences may have to remain in place for the next 25 years before American society achieves the degree of racial equality that this "compelling interest" demands.

A "compelling interest" can, of course, be whatever a particular court or administration believes it to be. What is involved in the Fisher case, therefore, is nothing less than the most crucial question of individual rights as guaranteed by the Constitution. On one side are those who believe, as the Fourteenth Amendment makes abundantly clear, that all citizens are entitled to "equal protection of the laws" without regard to race, gender, religion, or national origin. On the other side are those who believe that those very factors are of such overriding importance that efforts to shape equality of outcome must transcend the equal protection clause itself.

What is involved, in other words, is an issue that the Founders of this country and subsequent generations of Americans had very much in mind as they composed the Constitution and its 27 amendments. The Founders in particular were thinking of something very similar to what Edmund Burke referred to as "the real rights of men" as opposed to the "false claims of right" advanced by the social revolutionaries in France. Those real rights centered on the "advantages" of civil society, including the prosecution of justice without regard for race, religion, or national origin. Opposed to real rights is what Burke called the fraudulent right to pursue personal justice or equality by any means necessary. Burke was thinking specifically of the effort underway in France to oblige class equality by means of force and violence, but he was farsighted enough, as were our Founders, to understand that there would arise challenges to real rights based upon other claims.

In our time, the preeminent example of false rights is the assertion of the equality of outcomes. In the absence of race-based admissions, 3% of students entering the University of Texas at Austin were African-Americans. While no specific linkage to individual acts of discrimination was asserted, university officials apparently decided that this outcome was unacceptable. Thus, following the decision in Grutter v. Bollinger, race was once again considered as a factor in admissions, and the number of African-American students admitted to the university doubled. In similar fashion, the number of Hispanic students increased by 65%. The effect of race-based admissions on white students, however, was to deny them admission in favor of students who were less prepared academically.

Diversity programs like those at the University of Texas, it should be stressed, are not an attempt to address specific cases of discrimination. The so-called benefits of diversity on campus are not linked to specific acts of discrimination against the students whom they benefit. They are attempts to legislate equality of outcomes. Proponents maintain that racial diversity in and of itself is an essential part of higher education, perhaps more important than scholarship, character formation, or general social development. Yet it is not just racial diversity in general that is viewed as necessary. Increased contact with Asian-Americans, Jewish Americans, or European Americans of differing backgrounds is not enough. What is meant by an "essential element" in higher education is greater contact with black and Hispanic Americans.

One of the most troubling implications of racial preference programs is the suggestion that blacks and Hispanics are incapable of competing with whites on a level playing field. Most rational persons know this to be absurd, but this is what is suggested by the liberal rationale for racial preference. It would seem that liberals have little faith in the intellectual abilities of the racial minorities whom they pretend to advance. Certainly the brief filed jointly by the administration's Justice and Education Departments suggests this racially charged view with its statement that "an individual's membership in any group may provide deeper understanding of the person's record and experiences." The individual, in other words, is to be "understood" as part of a racial group, not as someone who can transcend the influence of race.

This view of human beings seems to be the very opposite of that hopeful vision of a "post-racial" presidency upon which Obama campaigned. We have not heard much from the president about the post-racial presidency of late, perhaps because he is too busy filing briefs in favor of racial preferences in education and inserting language into the health care bill that provides preferential contracting to entities "with a record of training individuals from minority communities." By all appearances, it seems that Obama wishes to institutionalize racial preference as a permanent feature of American life.

Regardless of which way the appeals court votes, it will probably be up to the Supreme Court to decide the merits of Fisher v. University of Texas. Since Sandra Day O'Connor has been replaced by conservative Justice Samuel Alito, one can speculate that the court, if it decides to take up the case, might reach a different opinion of the role of race in college admissions. Justice O'Connor, after all, seemed rather cavalier in the manner in which she condemned the next generation of white and Asian Americans to second-class citizenship. One can only hope that Fisher v. University of Texas will reach the court before too many months have passed, and that the court will take this opportunity to reassert the constitutional rights of all Americans.

Dr. Jeffrey Folks taught for thirty years in universities in Europe, America, and Japan. He has published many books and articles on American culture and politics.