The Supreme Court seems poised to rule all public affirmative action programs unconstitutional, although Anthony Kennedy might step in with another one of his “affirmative action might be permissible in theory although it never is in practice” specials. This would be regrettable, as well as revealing the “originalism” of Thomas and Scalia for what it is. Jamelle Bouie reminds us of an instructive fact about this particular plaintiff:
What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.
Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.
To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.
Despite the “taking slots from people who deserve them” narrative so beloved by opponents of affirmative action, the “victims” are highly likely to be these kinds of very marginal cases, coming from the part of the applications process where distinctions are essentially arbitrary. Using diversity is a criteria in making these otherwise arbitrary distinctions isn’t bad policy and doesn’t violate the Constitution.