Overturning Racial Preferences at the Ballot Box

The Supreme Court upheld affirmative action in college admissions—but voters and legislators can have the last word.

The Supreme Court ruled last week in Fisher v. University of Texas that racial discrimination is essential to a quality college education. Justice Anthony Kennedy was somewhat less direct in his majority opinion upholding racial preferences at the school, but that was the gist of his decision.

According to the ruling, a racially and ethnically diverse campus produces certain educational benefits, and race-conscious admissions policies can be lawfully used to achieve the proper mix. If you are wondering what, exactly, these education benefits are—whether they lead to, say, higher grades, graduation rates or lifetime earnings—Justice Kennedy believes you’re overthinking things. “Considerable deference,” he wrote, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

The University of Texas defends its racial double standards by insisting that race is only one of many factors in determining admission. But it also acknowledged during the case that a “candidate’s race is known throughout the application process” because it’s “on the front page of the application.” In previous rulings, the Supreme Court has said that treating people differently based on race and ethnicity is inherently suspect but sometimes permissible as a last resort. It can’t simply be used as a means to a more noble end such as “diversity,” and other, race-neutral polices, must be tried first.

Justice Kennedy’s opinion does its best to hop, skip and jump around these precedents—some of which he wrote—and explain why diversity is a higher legal principle than equal protection under the law as stated in the 14th Amendment. He approvingly quotes self-serving, unsupported assertions by the university that campus diversity somehow “promotes learning outcomes” and furthers “cross-racial understanding.” If that’s true, what explains the recent racial unrest at schools like Amherst, Yale and the University of North Carolina, all of which have minority enrollments above the national average?

Justice Kennedy’s decision reads as though it was written by someone whose highest concern is not upholding the Constitution or even doing what’s in the best interests of bright minority students that affirmative action turns into failures. Rather, he seems more interested in embracing trendy theories on race in order to avoid being tagged a racist. The country deserves less cowardly jurisprudence—as do minority students who are systematically steered away from schools where they would do well in their preferred major and into schools where they are more likely to struggle because most of their fellow students are better prepared academically.

It’s worth noting that four days before the court handed down Fisher, the Texas Tribune published data showing that Texas A&M, a school that eschews race-based admissions, had been increasing student diversity at a much faster rate than the University of Texas. “Despite its reluctance to formally consider the race of its applicants, the university has worked hard to convince black and Hispanic students to apply and enroll,” said the report. “Since 2003, when the U.S. Supreme Court reaffirmed the legality of affirmative action in college admissions, A&M has continued not using it, yet the share of black and Hispanic students has more than doubled at its College Station campus—from 10.8 percent to 23.1 percent.”

That’s an increase of 114%. By contrast, black and Hispanic enrollment at the University of Texas at Austin grew by only 45% over the same period. The university has insisted that a race-blind admissions policy wouldn’t produce sufficient diversity, and a Supreme Court majority all but took the school at its word. Yet the Texas A&M experience undermines that claim.

The Fisher ruling is an undeniable setback for opponents of racial discrimination. It’s especially galling to read Justice Kennedy insisting that racial discrimination can be educationally beneficial. Jim Crow-era segregationists made a similar argument. A conservative majority on the high court is nowhere in sight these days, which means that the Fisher ruling is probably in no danger of being overturned anytime soon.

On the bright side, some nine states have banned race-conscious policies through legislative action, executive order or referendum. And with the exception of Colorado, every time these measures have been put to a statewide vote, race-neutrality has carried the day. Nothing is stopping a Republican Congress from passing legislation upholding equal protection under the law to remind the high court’s liberals that theirs is not the last word.

Defending a racial spoils system in an increasingly diverse country gets more difficult by the day. Proponents must reconcile group preferences with the fact that both the Constitution and the Civil Rights Act of 1964 mandate equal treatment of individuals. That’s an impossible reconciliation—at least when social engineers in black robes aren’t pretending otherwise.

This piece originally appeared in The Wall Street Journal

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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator.

This piece originally appeared in The Wall Street Journal