In the long running case of Fisher v. University of Texas at Austin, insufficient notice has been paid to the shifting justifications offered by the University of Texas for its racially targeted admissions program. In some ways, the University has realized that it may have been too honest for its own good, and the change of its grounds reflects the way the Supreme Court has allowed universities to play a game of charade. There is a better way.

First, a reprise.

The issues in Fisher v. University of Texas at Austin have been and remain first, whether the university’s undergraduate admissions program favoring racial minority applicants meets the requirements established in Grutter v. Bollinger (2003), and second, even if the program is compatible with Grutter, whether Grutter itself should be overruled.

In 1996, the Fifth Circuit struck down racial admission preferences at the University of Texas in Hopwood v. Texas. The court held that Justice Powell’s opinion in Regents of Univ. of California v. Bakke (1978), which had allowed for race to be considered as “one factor” among many, had been supplanted by subsequent cases such as Adarand Constructors, Inc. v. Pena (1995). In response to the court’s decision in Hopwood, the Texas legislature required that the University of Texas accept all applicants who graduate in the top 10% of their high school class. The 10% plan, also adopted elsewhere, has been lauded as “race neutral.” But, of course, the fact that race is not made a factor in explicit terms does not obscure the real purpose of the 10% program, which is, namely, to obtain more numbers, pure and simple, of minority students. Beneath the surface, it is as much a race conscious program as that struck down in Gratz v. Bollinger (2003), the companion case to Grutter. The only difference is that the university (or the state) doesn’t have to say that it is.

Unhappily, the 10% program necessarily piggybacks on the country’s dysfunctional secondary schools, where poverty and resegregation has concentrated so many black, and now, Hispanic Americans, in neighborhoods and schools where a culture of attainment is either absent or significantly diminished. However, that socio-economic fact gives universities an alternative justification for the 10% plan: it provides opportunities for students who do not come from “privileged backgrounds.” Thus, the plan’s purpose of “socio-economic diversity” does not need to be justified under a higher level of scrutiny under the Equal Protection Clause as would an explicitly race conscious plan. At the same time, however, graduates of lower performing high schools, where minority populations tend to be concentrated, predictably did not succeed in their university studies as well as graduates from “better” high schools, thus perpetuating the stereotype that minority students are less capable than white students.

Such was the experience of the University of Texas. The University accepted, as the law required, applicants who graduated in the top 10% of their high school class. In addition, other students were admitted based upon an index combining standardized test scores and class rank, and a “Personal Achievement Index,” made up of a number of factors, including socio-economic status. The “Personal Achievement Index” tended to favor minority applicants, but race was not an explicit factor.

That dual admissions program produced increasing minority enrollments, so that by 2003, the university had an entering class of 21.4% Black and Hispanic students, up from 18.6% under the pre-Hopwood race-specific admissions program.

Then came Grutter. In that decision, Justice O’Connor specifically ratified Justice Powell’s position in Bakke. She held that a university could seek to increase minority enrollment, as such, for the purpose of obtaining a “critical mass” of minority students so that the educational mission of the university in having a diverse student body could be achieved. The Court deferred to the university’s judgment as to what kind of and how much of a critical mass would be necessary to achieve the “compelling end” of a diverse and enriching educational environment. The Court also seemed to defer to the method of achieving the critical mass, so long as it did not involve “outright racial balancing,” quotas, or a policy that was tantamount to a quota.

The day that Grutter was decided, the University of Texas put forward a proposal for a more racially conscious admissions program to supplement the 10% plan. The University argued that it needed more minority students to align its student minority population to that of the state’s population in general, and to assure that each classroom would have enough minority students to assure sufficient diversity. The University even stated that diversity in a classroom would not be satisfied unless there were at least two students who were African-American, two who were Hispanic, and two who were Asian. By 2008, the Black and Hispanic proportion of the entering class had increased to 25.5%, though most of the increase seems to have resulted from changing demographics under the 10% plan.

In 2008, Abigail Fisher was denied admission to the University of Texas under that part of the admissions program that was outside of the 10% plan. Her suit against the University was unsuccessful in district court and, in 2011, she lost in the Fifth Circuit. The court of appeals had accepted the University’s asserted purpose in its admissions policy of aligning the minority student population with the proportion of minorities in the state’s population, and in achieving a “critical mass” for classroom diversity. It interpreted Grutter as requiring a presumption of the University’s good faith in seeking a critical mass for educational purposes by the means it chose and placing the burden of rebuttal on the complainant.

When the Supreme Court accepted certiorari, the University dropped its previous justifications for the race specific part of its admissions program. It would seem that the University had noticed that it may have been too honest. Recall that it had wanted its student minority population to be in the same proportion as the minority population of the state. And is not that the real justification for so much affirmative action, particularly in universities that we see? Every fall, colleges and universities trot out their statistics. They see a problem if a minority is “only” 10% of the entering class, say, when it is 14% of the population, or that women have not yet achieve “parity” with men. The objective is that minorities should be “at least” equal to their proportion of the population at large, or that women should be “at least” 50%. Of course, it is not a “problem” when white males drop below 50% of an entering class. And, without needing to go into further discussion here, that demonstrates that the moral basis for that kind of statistical parity is problematical. Nonetheless, that was what the University of Texas was trying to do, and it said so. But it must have realized that such a justification fails before the Court on two grounds: 1) it has nothing to do with intellectual diversity in the classroom, and 2) it is simply a quota seeking to be achieved.

The University also discarded its second justification: it needed at least two of each minority in the classroom to reach a “critical mass.” Now it would seem that if the Court were going to defer to the university as to what a critical mass was, the university should be able to define it for itself. But again, the fact that it came up with actual numbers meant that it was pursuing a “quota,” which the Supreme Court will not abide.

Instead, the University abjured any “target” in its admissions policy. Rather, the University wanted “diversity within racial groups.” In other words, it was admitting that the 10% plan produced a host of underperforming students. In fact, the State of Texas had recently capped at 75% of the entering class those admitted under the 10% plan for that reason. The University said it need more affluent minority students to counter the stereotype produced by the 10% plan. In seeking mere numbers under the 10% plan, the University had weakened its student body overall, and had ratified that continuing perception that minority students cannot make it on their own. Thus, in high irony, the University claimed it needed affirmative action to counter the deleterious effects of affirmative action.

The University’s shift, though again honest, was too little too late. In Fisher v. University of Texas (2013), Justice Kennedy (who had dissented in Grutter) declared that there would be no deference given to the University in the means it chooses to achieve critical mass. Rather, under the narrowly tailoring prong of strict scrutiny, the University must show that it could not “achieve sufficient diversity without using racial classifications.”

But on remand, the University won again, this time on its asserted grounds of “inter-racial diversity,” Judge Garza offering a strong dissent.

As a goal, “inter-racial diversity” has a certain plausibility. It counters the very stereotype universities have abetted by their hidden “numbers” policies. But it, at the same time, it pulls the mask off of what universities are actually engaged in. As haphazard and sometimes illogical the opinions of Justice Powell in Bakke and Justice O’Connor in Grutter, they were, I believe in saying this to universities: “Be honest about your mission. Seek quality and genuine diversity of viewpoint. Numbers for the sake of numbers demeans your mission and the very students you admit.” But universities (and states) chose numbers, as the 10% plans demonstrate, though they pretended otherwise. Indeed, why should universities be truly interested in genuine diversity among students when they eschew it among their own faculties? As Justice Ginsburg predicted in Gratz “institutions of higher learning may resort to camouflage.”

“Inter-racial diversity” in admissions is the corrective for the very stereotype universities have created. Would it not be better to seek such inter-racial diversity simply through admission on non-racial grounds? It would seem to be more effective. And at least it would be honest.