Via Instapundit, this essay by Gail Heriot of National Affairs examines the downside of Affirmative Action.

The Sad Irony of Affirmative Action

In 2003, the Supreme Court held that the University of Michigan’s law school could substantially relax its admissions standards in order to admit a “critical mass” of African-American and Hispanic students. Many observers interpreted that decision — Grutter v. Bollinger — as an open-ended embrace of affirmative action.

The University of Texas was among the many universities emboldened to ramp up its use of race-preferential admissions policies. In 2003, the university already had in place an admissions policy designed to raise the number of under-represented minority students attending its flagship campus in Austin by admitting the “top 10%” of the graduates of each Texas high school without regard to SAT scores. Soon after the Grutter decision, however, the university announced that it was still dissatisfied with the diversity of the student body at Austin, 21% of which was composed of under-represented minorities (16.9% Hispanic and 4.5% African-American), and that the school would be implementing race preferences to boost that diversity. Under the new policy, the proportion of the student body composed of Hispanics and African-Americans rose to 25%.

The result was a lawsuit. The plaintiff — Abigail Fisher — is a young woman from Texas whose academic credentials were good, but not quite up to the standards that whites and Asians must meet in order to gain admission. They were, however, above those necessary for African-American and Hispanic students. Fisher, who is white, was rejected, and wound up attending the less prestigious and (for out-of-state students) more expensive Louisiana State University. Her case — Fisher v. University of Texas — was argued before the Supreme Court in October. It will be decided sometime in the coming months.

The Court may decide Fisher on narrow grounds. There are several dimensions along which the University of Texas’s race-preferential admissions policies are more aggressive than those in Grutter. For example, Grutter permitted Michigan to use racially preferential admissions policies to admit a “critical mass” of African-Americans and Hispanics to its overall student body. Texas, however, takes the position that it needs “critical mass” not just in its student body as a whole, but in each classroom, program, and major. Under the “top 10%” policy, Texas had likely already achieved a “critical mass” of minorities across its student body. Classroom-level “critical mass,” however, requires much more extensive preferences; it could conceivably justify racial discrimination in course registration and other more aggressive discriminatory practices.