The Fisher Case

Ilya Somin has an interesting post on the Fisher case now before the Supreme Court.  As Somin discusses, one of the major arguments against the use of race-based affirmative action in Texas is that Texas has another means of "diversifying" its college populations. This is the 10 percent plan, under which the University of Texas accepts the top 10 percent of students from every school district. Since school districts in Texas (and elsewhere) tend to have different racial and ethnic compositions, this already funnels students from "under-represented" groups into the state's top university.  Therefore, the Supreme Court could rule that an explicit race conscious policy is unnecessary to create racial diversity. Somin warns that this could be dangerous because it would lead affirmative action advocates to seek ways of promoting racial preferences that would be nominally race neutral, but would in practice give advantages to members of protecting groups. Somin compares this to Jim Crow laws, such as literacy tests and poll taxes, that had the appearance of being racially neutral, but actually disenfranchised blacks.

I think this is a good point. Since the 1973 Bakke case made the "compelling national interest" of diversity, rather than compensatory preferences for individuals in historically disadvantaged groups, the main legally acceptable justification for race conscious policies, "diversity" has often become a subterfuge for those who believe that individuals in some minority groups deserve preferential treatment or who want to advance group interests.  I remember a few years ago attending a symposium on affirmative action in which some participants openly declared that advocates had to use the language of diversity in order to achieve preferences as compensation. So, given that "diversity" has become a slippery strategy for achieving goals that are not legally permissible, it is realistic to expect that putatively "race neutral" diversity policies could become strategies for pursuing entirely "race conscious" goals.