At the end of a semester in which racial protests have rocked college campuses around the country, the Supreme Court is considering, once again, the constitutionality of race-based affirmative action.

The Supreme Court has long held that the constitutional guarantee of the “equal protection of the laws” means that it is almost always wrong to treat people of different races differently. In an ideal world, everyone would play by the same rules and be treated exactly the same way.

But we do not live in an ideal world, which is why the court also has acknowledged that sometimes fairness requires taking race into account and allowing institutions to treat people of different races differently.

Legally, the court has held that institutions may take race into account when they have some very important and constitutionally appropriate goal (a “compelling interest”) that can be achieved in no other way than by the use of some race-conscious means (the plan must be “narrowly tailored”).

In a landmark ruling in 2003, Grutter v. Bollinger, the Supreme Court ruled that selective institutions of higher education have a compelling interest in “obtaining the educational benefits that flow from a diverse student body.” It also held that the admissions program used by the University of Michigan Law School was “narrowly tailored” to produce those benefits.

At issue in this week’s case, Fisher v. University of Texas, is the admissions program used at UT Austin, the state’s flagship campus. Texas state law provides that every student who graduates in the top 10 percent of any Texas high school will be admitted automatically to the university, and these students comprise three-quarters of the university’s entering class. The remaining quarter of the class is admitted using a plan modeled on the Michigan Law School admissions program.

The legal question the Fisher case presents is deceptively simple. Because the top 10 percent rule produces a body of high-achieving students who are also geographically, economically and racially diverse, is it really necessary for the University of Texas to take race into account when it seeks to fill the remaining seats in its class?

That question turns out to be surprisingly difficult. So difficult, in fact, that this is the second time the Supreme Court is trying to answer it. The first time, the justices sent the case back to the lower court, instructing it to “assess whether the university has offered sufficient evidence to prove that its admissions plan is narrowly tailored to obtain the educational benefits of diversity.”

The fundamental problem is that the court’s agreement that securing the “educational benefits of diversity” is a compelling interest masks deep disagreement about what those benefits are and how to measure them.

In the Grutter case, Justice Sandra Day O’Connor noted that the Michigan Law School claimed that having a racially diverse student body promotes cross-racial understanding, leads to improved learning outcomes and better prepares students for the workforce.

These are all excellent goals, and it is clear why O’Connor regarded them as compelling. But they are all extremely difficult to define and devilishly hard to measure.

If we had good, solid measures of these things, the Fisher case would be easy. If the University of Texas could show, with solid and broadly acceptable evidence, that cross-racial understanding, learning outcomes and workforce preparation decisively improved when and because it started using race in making admissions decisions, the university would obviously win, and skeptics of affirmative action would have to concede that they were wrong. If instead those measures remained constant or even declined when the university began looking at race, the university would lose and would have to concede that it deserved to lose.

Unfortunately, we do not now have such measures.

Supporters of affirmative action argue that, if there are “benefits of diversity,” then these must increase when there is more diversity, by which they effectively mean when there are more black and Hispanic students.

Opponents of affirmative action argue that because we can’t measure these benefits well, colleges and universities cannot meet their burden of proving that we get better learning and all the rest when race is taken into account in college admissions.

In Wednesday’s argument, no one discussed this year’s campus protests. But they suggest an obvious question: If, after decades of court-approved affirmative action in higher education, race relations on campuses have not improved and may be getting worse, should we perhaps consider the possibility that affirmative action has failed to live up to its promise?

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

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