While the Montana campaign finance law is in a holding pattern from the Supreme Court, one case definitely granted that will be heard next term is an affirmative action case coming out of Texas. Titled Fisher vs. University of Texas at Austin, the case revolves around an admissions policy for Texas residents into the state’s university system. In effect, the case represents an opportunity for the Court to re-examine a string of cases dating back to the Bakke decision and, more specifically, the more recent Grutter decision arising out of Michigan’s law school admission policy.

After the Grutter decision was announced, the University of Texas undertook a study to determine if existing policies were having the desired effect of increasing minority enrollment in their undergraduate programs. The resulting policy changes stated that in light of the Grutter decision they would adopt a policy that would take race into account. Prior to this policy change, they used an automatic enrollment system where they simply, regardless of race or ethnicity, accepted the any Texas resident applicant who was in the top 10% of their high school graduating class. This policy filled 80% of the slots undergraduate slots available. For those not accepted under the Top Ten Percent Law, the University, in an effort to increase minority admissions, decided they would take race into account in order to boost minority enrollment.

Abigail Fisher failed to qualify for admission under the Top Ten Percent Law and thus fell into that remaining 20% of the undergraduate class. Unfortunately for her, because race was a deciding factor in the reformulated criteria after Grutter, she was denied admission despite having better academic performance and test scores than minorities granted admission outside and even within the Top Ten Percent Law admissions. In short, she contends that because of the color of her skin (white) she was summarily disadvantaged in the process. Put any other way, it was a case of reverse discrimination advanced through a state affirmative action program.

She lost her case in the Fifth Circuit. That court stated that in light of the Grutter decision, they would defer to the university expertise because they decided in good faith that their programs needed to increase racial diversity. When the full Fifth Circuit declined to hear her appeal, she appealed to the US Supreme Court and they have accepted the case. She claims that the lower courts claimed to be applying strict scrutiny to the university’s policy, but that they really simply deferred to the university’s reasoning and decision. For their part, after much foot dragging, argued that the Court should reject the appeal as moot since by the time the Court would hear the case, Fisher would have graduated from LSU and could not be admitted as an undergraduate at the university. Furthermore, they argued that by returning $100 in fees to Fisher, her standing was further impugned and the case rendered moot. The Court decided to hear the case regardless which indicates that they wish to tackle affirmative action now.

This case represents one of the major problems with affirmative action programs. Before the University changed its policy and took race into account for those who did not qualify under the Top Ten Percent Law- in 2004- the University of Texas had one of the most racially and ethnically diverse undergraduate student bodies in the country. Because Grutter seemed to allow a grant of changing policies in this area did not seem to indicate that the university should actually change its policies. In fact, Fisher’s argument is that even though the Court said that race can be considered as one among many factors, Texas went too far. The original law was achieving the desired effect of increasing minority enrollment in the system. The new policy sought to increase minority enrollment in major fields of study, and at the classroom level. This, Fisher argues, is de facto establishment of quotas which are specifically disallowed under previous Supreme Court rulings. Essentially, Fisher’s lawyers now argue that Grutter be overruled.

That decision was authored by the now departed Sandra Day O’Connor who was replaced by Alito who will likely side with John Roberts who is against affirmative action. They would likely side with Kennedy, Scalia and Thomas who were in the dissent in the Grutter decision. Since Kagan recused herself from the case (as Solicitor General, her office filed a mandatory brief in the Fifth Circuit), it appears as if Grutter is primed to be overruled 5-3. A 4-4 decision would leave the lower court ruling intact and Fisher a loser.

This case represents the best opportunity to address affirmative action in general. As many have pointed out, by its very nature affirmative action is racist in that it cannot be race neutral. The original Top Ten Percent Law was having its intended effects by increasing minority enrollment in the state. Importantly, this case underscores the need for educational reforms that benefit all students. The Top Ten Percent Law may increase minority enrollment, but does it really get the best and brightest Texas has to offer into higher education? Does it insure the chances of academic success in college for minorities? Does it steer anyone, let alone minorities, into much needed major fields of study? In short, as Justice Thomas notes, the most race neutral solution would be not to consider race at all.

So how does one overcome the vestiges of racial discrimination in hiring and school admission? We start to overcome these barriers through true educational reforms designed to lift the performance and standards of all students. Often, that does not translate into throwing more money at failing, predominantly minority schools. Instead, it means providing minorities opportunity through choice of schools to attend. It means rearranging available resources like moving qualified teachers to low performing minority schools through merit pay and/or pay differential systems. It means allowing programs like DC’s voucher program to prevail and expand , rather than killing it in its infancy.

I don’t believe that ANY conservative truly believes that qualified minority members should be excluded from employment, advancement, or college admission. However, the key word in that statement is “qualified.” When we begin to allow unqualified individuals employment, advancement, or admission to higher education, we weaken not only our social fabric but also our future all in the name of racial diversity. I think all sides can agree that racial diversity has its advantages and should be encouraged, or even that there is a history of racial discrimination. However, I think only conservatives agree that racial diversity in and of itself should not be the only or predominant goal in any program, and I believe it is only liberals who see a racial animus in any statement against affirmative action. It is the liberal who is being racist by seeing the racial bogeyman behind every tree and showing a preference for one race over another rather than bona fide qualifications being the deciding factor.

In the Texas case, they were clearly achieving their overall goal of increasing minority enrollment in their university system. This applied not only to blacks, but also Hispanics and Asian-Americans. Unfortunately, the program apparently created an over supply of African Studies majors or whatever that they now feel the need to micromanage and socially engineer outcomes. Hopefully, sometime next year, the Court will strike down the Texas policy as racist against more qualified applicants despite their skin color, ethnicity, or gender. Hopefully, they will not further sully academic achievement in higher education for the sake of racial diversity alone. The fact is that some blacks, Hispanics, Asians, or whites may not have the academic rigor to succeed in college. Yes- a lot goes into that determination like test scores, high school performance, extracurricular activity, sports participation, volunteer service, difficulty of courses, etc. However, race should never figure into the equation under any circumstance.