An op-ed in the Sunday New York Times this week discusses the pending Supreme Court decision in Fisher v. University of Texas, in which the use of racial preferences in university admissions is challenged. The op-ed acknowledges that, despite schools’ claims that race is considered as just one among many factors, it is in fact given huge weight today. This is despite warnings from the Court already (in 1978 and 2003) that the heavy and mechanical use of race is unacceptable.
But then the op-ed seems to suggest that the Court may want to give the schools yet another chance to consider race, so long as this time it is made clear that they really, really have to try not to. That is, it suggests that the Court “leave the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk — and help many minority applicants.”
The trouble is that, so long as the door is left open, we know from past experience that universities will drive a truck through it. They will find a way to claim that they have no choice but to take “explicit consideration of race.” They were willing to dissemble about how heavily and mechanically race was being weighed, and they will also dissemble about the need to weigh race at all. If there are other, class-instead-of-race factors that schools will consider if they are forbidden from making “explicit consideration of race,” fine, but there is no reason to leave the forbidden possibility open to them.