Abigail Fisher: Not dark enough to get “an equal shot”

The under-populated U.S. Supreme Court recently made four decisions on issues with ethical principles involved. This is the first of four posts reviewing the ethics implications of the decisions.

I. Affirmative Action: Fisher v. University of Texas

The University of Texas’ admissions program guarantees admission to top students in every high school in the state. It is dubbed the  Top 10 Percent program, though the percentage cutoff is flexible. A second part of the admissions program admits other students from Texas and elsewhere using standards that take into account academic achievement and other factors, including race and ethnicity. Many colleges and universities base all of their admissions decisions on such grounds. The case before the Court challenged that part of the program, and presented an opportunity for the Supremes to finally declare affirmative action unconstitutional, as previous opinions hinted they might do some day.

This was not the day, however. Justice Kennedy, writing for the majority, said courts must give universities significant but not total autonomy in designing their admissions programs, writing:

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

This defines either an ethical dilemma, which the Court’s majority is punting, or an ethical conflict…which the Court majority is punting. Is diversity an ethical objective, or a practical one, that is, a powerful non-ethical consideration? It is hard to argue that diversity in a student body isn’t desirable—to enhance the educational experiences of students, to avoid having a permanent, under-credentialed underclass, to “look like America.” However, fairness and common sense argue that admitting one candidate over another who is better qualified simply because of ethnicity or race is per se wrong. I don’t blame the Court at all for not making a clean call.

As usual, President Obama described the result in simplistic terms. “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society,” he told reporters at the White House. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.”

Thank you, President Obvious. The crux of the case, however, was what should be done when using race as a standard for admission to attain that diversity denies an “equal shot” to someone who has the misfortune to be white, like Abigail Fisher, or Asian-American.

Justice Alito wrote a tough and persuasive dissent:

“…And UT initially justified its race-conscious plan at least in part on the ground that “significant differences between the racial and ethnic makeup of the University’s undergraduate population and the state’s population prevent the University from fully achieving its mission.” (“[A] critical mass in Texas is necessarily larger than a critical mass in Michigan,” because “[a] majority of the college-age population in Texas is African American or Hispanic”)…On the other hand, UT’s counsel asserted that the critical mass for the University is “not at all” dependent on the demographics of Texas, and that UT’s “concept [of] critical mass isn’t tied to demographic[s].” And UT’s Fisher I brief expressly agreed that “a university cannot look to racial demographics—and then work backward in its admissions process to meet a target tied to such demographics.” … To the extent that UT is pursuing parity with Texas demographics, that is nothing more than “outright racial balancing,” which this Court has time and again held “patently unconstitutional.” …(“Racial balance is not to be achieved for its own sake”); Croson, 488 U. S., at 507 (rejecting goal of “outright racial balancing”); Bakke, 438 U. S., at 307…(“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid”). An interest “linked to nothing other than proportional representation of various races . . . would support indefinite use of racial classifications, employed first to obtain the appropriate mixture ofracial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 614 (1990) …And as we held in Fisher I, “‘[r]acial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.”’” 570 U. S., at ___ (slip op., at 9)…Although UT claims an interest in the educational benefits of diversity, it appears to have paid little attention to anything other than the number of minority students on its campus and in its classrooms.UT’s 2004 Proposal illustrates this approach by repeatedly citing numerical assessments of the racial makeup of the student body and various classes as the justification for adopting a race-conscious plan. See, e.g., Supp. App. 24a– 26a, 30a. Instead of focusing on the benefits of diversity,UT seems to have resorted to a simple racial census…”

What he is suggesting is that “diversity” programs are, in fact, a sham, repackaging racial and ethnic quotas with a squishy label with the gloss of an absolute good (though with little hard data do support tangible benefits). It is a bit like the games played by anti-evolution Christian conservatives, using “creation science” to make “creationism” sound better.

I am inclined to agree with Alito’s analysis, but yet I agree that it is not culturally healthy for the best universities to graduate classes that are notably lacking in blacks and Hispanics. The opinion in Fisher seems to me as yet another stall, hoping that changing demographics and effective public policies may make the issue moot. The Supreme Court, in other words, is not sure what’s right. Neither am I. Alito, however, is correct about what’s legal, and supposedly the Court’s job is to follow the law, not ethics. Thus the Supreme Court, in this case, may be making an ethical decision that is unethical too.

Do note that in this case, the absence of Justice Scalia, whose comments in oral argument were so controversial, was not dispositive. The decision was 4-3, because Scalia is dead, and Kagan had to recuse herself. Had Scalia lived, a 4-4 vote would still affirm the lower courts, which gave the Texas policies a green light.

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Facts: NY Times