I champion affirmative action and thus derive little satisfaction from the Supreme Court’s ruling in Fisher v. University of Texas. True, I am relieved that the court, the most reactionary we have had on racial matters in many decades, did not go further in crippling efforts by institutions of higher education to insure an appreciable presence of marginalized racial minorities, especially blacks and Latinos. After all, Fisher did leave intact the program under challenge which counts being black or Latino as a plus in the searing, high-stakes competition for scarce places at the University of Texas. The Supreme Court held only that the lower courts had been insufficiently exacting when determining whether the university properly justifies its resort to race in making admissions decisions.
The Fisher decision is bad because it will invite a barrage of new attacks upon affirmative action in higher education, thereby discouraging a practice that has over the past 40 years been conducive to the public good, integrating racial minorities in key institutions at a pace that would have otherwise been impossible. It will make affirmative action more vulnerable by telling judges to pay less deference to university administration or admissions. But the problem with Fisher goes beyond a single decision. The problem resides in several decades of Supreme Court jurisprudence. Since Justice Lewis Powell’s landmark opinion in Regents of the University of California v. Bakke in 1978, the court has abjured justifications for affirmative action that are as compelling, if not more persuasive than the diversity rationale that is now all too dominant as a basis for positive discrimination on behalf of marginalized racial minorities.
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Affirmative action can rightly be justified as a means of seeking reparatory justice on behalf of groups that have long been oppressed and still bear the debilitating scars of their mistreatment, as a means of facilitating integration and as a means of countering ongoing racial prejudice. Limiting the accepted rationale for affirmative action to “diversity” constrains the policy unduly and makes it vulnerable to charges of insincerity since, in truth, many of its proponents are actually motivated by other concerns and mouth the rhetoric of diversity mainly to satisfy judicial overlords. Just suppose that social science could prove beyond dispute that a multiracial student body did not generate pedagogically useful “diversity”? Would many partisans of affirmative action end their support? I doubt it. I certainly would not because, in my view, the obligation to right past wrongs, the imperative to facilitate integration and the duty to counter ongoing but hard-to-detect biases are better reasons for race-conscious affirmative action than the educational hunch of “diversity,” though it too should suffice as an acceptable reason for preferring those who are not typically preferred.
With Fisher and previous rulings, the Supreme Court has put racial affirmative action under a heavy constitutional pall. That is a mistake on the court’s part that needs urgently to be undone. There is nothing in the Constitution’s text, in the intentions of its framers, or in the logic of its mission that should be seen as precluding or discouraging racial affirmative action. Several, perhaps a majority, of the Justices object that racial affirmative action runs afoul of constitutional color blindness. But the Constitution does not compel color blindness and should not be seen as harboring an aspiration for color blindness. The 14th Amendment merely directs states to offer all persons “the equal protection of the laws” — a malleable formulation that is capacious enough to accommodate affirmative action.
The commitment to constitutional color blindness that animates Fisher threatens policies like the one at the University of Texas that are helping to create a multiracial polity in which previously oppressed people are included and welcomed as valued, productive, equal actors in every sphere of American life. At present, in other words, constitutional color blindness is a destructive jurisprudence. The Constitution should be construed as prohibiting only invidious racial discrimination by which I mean racial distinctions that are meant to harm people because of their race. Of one thing, however, we can be sure: the University of Texas did not intend to harm Abigail Fisher. She was, to a small extent, disadvantaged. But she was disadvantaged for the purpose of aiding a commendable mission of racial healing not for the purpose of putting her down on account of her race. That sort of positive, benign racial policy should not be negated by judges but should be left to the sway of regular politics. The good people of Texas are not compelled to practice racial affirmative action. They could, like the people of California, decide to get rid of racial affirmative action altogether. But since the Texans have presumably decided to keep racial affirmative action, they should be allowed to do so absent harassment from the misguided Supreme Court of the United States.