When the U.S. Supreme Court last ruled on affirmative action in higher education, about a year ago, it achieved a rare degree of consensus. That consensus is about to be tested.

The seven justices who signed on to the majority opinion in the case of Fisher v. University of Texas agreed to reaffirm the broad principles laid out in a 2003 ruling by former Justice Sandra Day O’Connor, and they also agreed that the lower courts that had previously ruled on Fisher’s case had not applied those principles correctly. So, rather than reach a final decision about the Texas admissions plan, it sent the case back to the appeals court.

Here are the principles the Court reaffirmed:

• The constitutional guarantee of equal protection creates a strong presumption that the government should treat people as individuals, regardless of their race.

• The government, however, may treat people differently on the basis of their race if doing so is truly necessary to accomplish some very important goal.

• The goal of achieving “the educational benefits that flow from a diverse student body” is the only goal sufficiently important to justify affirmative action in education.

By contrast, the goal of achieving a racially balanced student body is constitutionally forbidden. To make it one’s goal is to enroll this many black students and that many white students would be to treat applicants not as individual persons but as nothing but members of this or that race who are admitted to fill out some racial quota — which is exactly what the guarantee of equal protection forbids.

In its ruling last year, the Supreme Court said the appeals court had failed to ask whether it was really necessary for the university to take the race of any applicants into account in order to achieve its educational goals. Specifically, it stated that the lower court must “assess whether the university has offered sufficient evidence that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

The appeals court just ruled, 2-1, in favor of the university, but its opinion did not really focus on the specific question the high court asked, which might, and should, lead the Supreme Court to revisit the case.

The University of Texas admits undergraduates in two groups. First, it admits every student who graduates in the top 10 percent of a Texas high school; about four-fifths of the undergraduates are admitted through this program, which yields large numbers of applicants from minority groups.

Next, it evaluates all the remaining students according to a “holistic” procedure, akin to that used by the University of Michigan Law School and endorsed by O’Connor in the 2003 Grutter case, in which an applicant’s race is taken into account as one element among many in each student’s profile.

Following the Grutter precedent, the University of Texas argues that it needs a “critical mass” of minority students in order to provide a quality education for all. It further insists that the top 10 percent program does not yield the critical mass it seeks, and that it can reach its goal only if it supplements the race-neutral top 10 percent program with the race-conscious, holistic program.

The appeals court agreed. If Michigan Law could constitutionally take the race of every applicant into account, how could it be constitutionally problematic for Texas take into account the race of only some of its students?

That argument is a good one, as far as it goes.

But it fails entirely to address the specific question the Supreme Court asked last year, which was: Does the university have “sufficient evidence” to show that the critical mass of minority students it seeks is truly necessary to attain the university’s educational goals and is not just a disguised quota.

To really make its case, the university will have to provide a list of the concrete lessons it takes to be the educational benefits of diversity — such as diminishing the force of racial stereotypes and improving cross-racial understanding. Then it will have to show that those lessons are not learned when the critical mass is not present and are learned when its critical mass is present and that the presence of the critical mass is the reason why.

That is a tall order. But it is what a solid, seven-vote majority of the Supreme Court demanded last year, and it is what the justices should continue to demand.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

Copy the Story Link