an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
President Bush has decided to weigh in on the side of the plaintiffs in the Michigan affirmative action case now before the U.S. Supreme Court, and is widely expected to tout Texas' "Ten Percent Solution" as an alternative to race-conscious affirmative action.
In response to the Hopwood decision, which barred the University of Texas from using race as a factor in law school admissions, the Texas Legislature passed a bill providing that Texas students in the top ten percent of their graduating high school classes shall be admitted automatically to any Texas state university for college education without consideration of standardized test scores. See Tex. Educ. Code Ann. § 51.803(a). The "Ten Percent Plan" trades on the fact that students in Texas attend ethnically segregated schools; the Legislature hoped that it would compensate in part for the predicted loss in minority enrollments that would occur when diversity-based affirmative action plans were no longer permissible.
The ten percent plan has its share of problems. First, it doesn't work in states that are not strongly de facto segregated in secondary education. Second, it does little to promote diversity in graduate and professional schools. One can try to award spots in graduate and professional schools to students from traditionally black colleges, but ultimately the effect is not the same as occurs in college admissions.
These two problems suggest why the plan may not maintain diversity. But the third problem is quite different. It is that it the Ten Percent solution isn't really consistent with the colorblind philosophy that many opponents of race-conscious remedies claim to support.
The Ten Percent solution is not in fact colorblind, and it is inconsistent with the political, moral and constitutional arguments for colorblindness generally offered by opponents of race-conscious affirmative action. Indeed, support for such a plan among opponents of affirmative action reveals the basic problem with colorblindness as a theory of equality: Colorblindness taken seriously leads to unpalatable results that most Americans would reject as undesireable, unequal, and unfair.
There is no question that the Ten Percent solution is a race conscious remedy. The avowed purpose of the Ten Percent solution is to increase minority enrollments at Texas state universities. If race-consciousness means taking race into account in government decisionmaking, the ten percent plan is clearly race conscious.
One might object that colorblindness merely means that the policy may not mention race on its face or make explicitly racial categories. But that undermines the moral case for colorblindness, making it only a fig leaf for otherwise unconstitutional motivation. The Supreme Court has wisely never adopted this view. It matters not whether the language of the plan is facially neutral if a racially discriminatory purpose for enacting the policy can be shown. Consider a state policy that was neutral on its face but could be shown to have been put in place specifically to increase the number of whites attending Texas state universities. Under Croson and Adarand, goverment policies that discriminate against whites must be viewed with the same degree of suspicion as policies that discriminate against blacks. If a purpose to increase white enrollments could be found, the policy would be unconstitutional under Washington v. Davis. By the same logic, so would a policy whose deliberate purpose was to increase black and Latino enrollments.
One might object to this line of reasoning as follows: The Ten percent solution does not discriminate *against* whites, it only discriminates *in favor of* blacks and Latinos. In support of this argument, one might cite the Feeney case, which says that discrimination must be because of rather than in spite of the effects on a particular group. But such an argument will be unavailing, for one could then argue that policies specifically designed to increase white enrollments were constitutional because they were not discrimination against blacks and Latinos, but only in favor of whites.
I would submit that the Ten percent solution is attractive to many people precisely because it *does* take race into account, and leads to a predictable supply of minority candidates without formally saying the magic words in the language of the statute. And it is more palatable because it organizes the method of selection at the group level rather than at the individual level. Because it is predictable that the top students at de facto segregated schools will be black or Latino, it is unnecessary to take their individual race into account in admitting them. This preserves the illusion that everyone is treated as an individual, not as a member of a group, and is treated the same regardless of their race. But that illusion is only made possible by fixing the rules of the game beforehand with a deliberate eye to the predicted racial balance of the incoming class. You can call this a lot of things, but colorblind is not one of them.