Jerry Brown and Racial Neutrality

Why are racial preferences still an issue? In 2003, the U.S. Supreme Court in Grutter v. Bollinger upheld the University of Michigan law school's use of race as a "plus" factor in admissions. The court said the school's racial preferences policy was "narrowly tailored" to further the state's "compelling governmental interest" of increasing skin color diversity on campus; however, schools must engage in "serious, good faith consideration of workable, race-neutral alternatives" before considering race. (The court struck down Michigan's points-for-race system in undergraduate admissions in companion case Gratz v. Bollinger.)

Grutter swung the race-based admissions gate wide open, but the court has the opportunity to close it for good in Fisher v. Texas. In 2008, Abigail Fisher and Rachel Michalewicz were rejected by the University of Texas (UT) at Austin and sued for racial discrimination. The U.S. Court of Appeals for the Fifth Circuit upheld UT's race-based admissions policy. The plaintiffs have asked the Supreme Court to hear their case.

Ironically, Texas had found a way to increase skin color diversity without the explicit use of race. In 1992, Cheryl Hopwood sued UT for racial discrimination after the law school rejected her, and the Fifth Circuit ruled in her favor. The state scrambled for a racially neutral alternative, and the legislature passed the top 10 percent law. Students graduating in the top ten percent of their class are granted automatic admission to any of the state's taxpayer-supported schools. (Schools also considered an applicant's socioeconomic status.)

The plan worked, but at a price. Some high schools are more rigorous than others, and in some cases, students at higher quality schools were denied admission over students from the top 10 percent at lower quality schools. As expected, students gamed the system. The Chronicle of Higher Education reported on a study that showed a "significant share" of Texas students choose less rigorous schools to improve their chances of graduating in the top 10 percent.

After Grutter, Texas continued the top 10 percent plan, but reintroduced race. Why did the state return to the explicit use of race when the top 10 percent plan was working? The race-neutral approach hadn't achieved the "full diversity that the university believes it should," UT vice president of legal affairs Patti Ohlendorf told the Texas Tribune.

It's almost pathological the way liberals go out of their way to avoid racial neutrality. Where's Freud when you need him?