Race-Based Admissions: Critical Mass Standard Is a Massive Mess in Texas

When is a quota not a quota? That seems to be the burning question in the latest Supreme Court case on race-based college admissions. It’s also a problem of the Court’s own making.

Twenty-two year old Abigail Fisher claims she was denied admission to the University of Texas at Austin because she is white. This is the latest in a long list of affirmative action lawsuits concerning race-based admissions. At issue in this latest case, Fisher v. University of Texas at Austin, is whether the Supremes’ previous interpretations of the Fourteenth Amendment’s Equal Protection Clause allow the university to use race in undergraduate admissions decisions.

Under the state’s Top Ten Percent Plan Texas high school graduates are guaranteed admission to state-funded universities if they are within the top 10 percent of their class. Fisher just missed that cutoff, in which case students can be admitted according to a formula that includes race. But how exactly race can be used is unclear.

Since 2004 Texas has used a “critical mass” standard, which the Supreme Court upheld in their 2003 Grutter v. Bollinger decision. “[E]nrolling such ‘critical mass’ simply to assure within its student body some specified percentage of particular group…would be patently unconstitutional racial balancing,” it determined. But using critical mass to achieve “substantial” yet unspecified “educational benefits that diversity is designed to produce” is just fine according to the Court.

Flash forward to the Fisher case and the Supremes are grappling with when does mass pass the “critical” threshold, since the University of Texas at Austin doesn’t define it or how it’s applied in its admissions decisions. 

That lack of clarity doesn’t seem to bother U.S. Solicitor General Donald B. Verrilli Jr., who’s representing the Obama administration, because he say’s there’s a compelling government interest in continuing affirmative action. “I think it is important…not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle … that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.”

A more perfect union, however, is achieved as a portrait of equal opportunity, not by a government paint-by-numbers set of fuzzy platitudes.

Equal educational opportunity should also start long before college by empowering parents, regardless of their socio-economic backgrounds, to choose the schools they believe are best for their children.

President Obama’s efforts to kill the very program his own Department of Education hails as a success, the D.C. Opportunity Scholarship Program, have been unrelenting—even though this program frees low-income and largely minority students to attend the same high quality private schools the children of the president and many members of Congress attend.

Attending such high-quality schools, far more than any government non-quota quota system, would better ensure students are prepared for the rigors of college.

Given his boss’ track record, Verrilli’s plea for “diversity” is hypocritical.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Chief Justice John Roberts back in the 2007 case Parents Involved in Community Schools v. Seattle School District No.1. That principle is as true today as ever.