Since we here often closely follow what we hold to be the salutory benefits of taking various forms of diversity of background into account — as a plus factor — in decisions about school admission, and hiring and promotion — I will remark quickly on why the Texas case handed down today is. . . correctly decided.
[But before I do — it is entirely deplorable that — due to the Republicans’ refusal to schedule a vote on Supreme Court nomineee Merrick Garland, the question of immigration policy the Court accepted last term has been left unresolved. The 4-4 split means no opinion will be issued. This is the spill-over of Republican-led and engineered gridlock. This therefore means that the flawed (in my view) analysis of the lower courts will stand, on immigration — for now. When President Hilary Clinton (“Gee, that has a nice ring to it!”) sends a new appointee to what will likely be a Democratic Senate, in January of 2017, all of this will be straightened out in a future case — thus securing the legacy of one of Mr. Obama’s signature programs.]
So, then — the good news: In a decision unlikely to have much meaning beyond the bizarre geography that makes up the Texas state funded school admission process, the Supremes just held that a white student cannot complain about diversity being a plus factor. The central reason that this is a very narrow decision is that, in Texas, the legislature has imposed (by law) a “set-aside” — for a large number of seats, reserved solely for students who graduate in the top ten per cent of their high school class. The white student here complaining was not in the top ten per cent. She did not challenge the notion that the state had created that set aside. That left her with a very limited universe of slots, and a highly competitive set of students against which her admission papers were to be judged. And so she was not admitted. At bottom, this case simply — and unsurprisingly — holds that a less-qualified white student cannot complain when a more qualified diverse student is admitted ahead of her — and in that regard, one plus factor may be the student’s diversity. “Considerable deference is owed to a university,” Justice Kennedy (depicted at right, writing for the 4-3 majority) wrote “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” He is right in that view. Here is the full opinion (a 75-page PDF file — of which over 50 pages comprise Justice Alito’s dissent) — and a bit:
. . . .Petitioner’s acceptance of the Top Ten Percent Plan complicates this Court’s review. In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review. . . .
The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for prospective guidance. The Texas Legislature, in enacting the Top Ten Percent Plan, cannot much be criticized, for it was responding to Hopwood, which at the time was binding law in the State of Texas. That legislative response, in turn, circumscribed the University’s discretion in crafting its admissions policy. These circumstances refute any criticism that the University did not make good-faith efforts to comply with the law. . . .
SO now you now. Onward — on a foggy, steamily sweet sultry day. Smile.