Sorting hat, Texas-style.

Photographer: Jon Durr/Getty Images

A 'Harry Potter' Defense of Affirmative Action

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The most important document in the most important Supreme Court case of the year is the University of Texas’ brief arguing that it needs to use affirmative action to achieve diversity in its undergraduate class. That brief, submitted Monday for the court’s consideration in Fisher v. University of Texas at Austin, says that the university can’t achieve its educational goals by admitting on numbers alone. Rather, achieving the magic of campus diversity requires a “holistic” effort to treat applicants as unique individuals with distinctive features. Think of the admissions process as a 10-gallon Texas version of the Hogwarts sorting hat, and you get the idea.

Is Texas right? And, equally important, can it persuade Justice Anthony Kennedy not to end affirmative action as we know it in college admissions?

Begin with the origins of the diversity argument. In the Supreme Court, it goes back to Justice Lewis Powell's controlling plurality opinion in the 1978 case University of California v. Bakke. Powell rejected the idea of quotas. He said educational diversity could be achieved instead by selection that took race into account as a single factor among others. And he quoted a friend-of-the-court brief describing the Harvard College admissions program, in which race could “tip the balance” to the candidates' favor just like “geographic origin or a life spent on a farm.” The idea was that the admissions office “pays some attention to distribution among many types and categories of students.”

Harvard’s diversity rationale had its origins in the university's efforts to replace a purely exam-based admissions policy that produced the class with too many Jews. Yet the advent of affirmative action enabled the idea of diversity to be repurposed to achieve a new era’s vision of a socially desirable class composition.

To win, Texas needs to convince Kennedy that its diversity goal demands an even more precise method of curating the admitted class. Texas has a program that automatically admits students in the top 10 percent of every Texas high school class, measured by grades. That produces some racial diversity, mostly because, as the university emphasizes in its brief, many high schools are de facto segregated.

But the 10 percent program doesn’t get a university all the way to a class that is numerically representative of the state's racial diversity. For the rest of the applicant pool, the university applies what it calls a “holistic” process: It looks at every aspect of the students’ experiences and lives, not just race but also demographics. It claims that from this group it gets students “with a diversity of experiences, including the experience of growing up as a minority in an integrated community or being a minority who is not the first in their family to attend college.”

This argument is at least partly crafted out of necessity. Texas needs a way to describe the other minority students it's admitting as demographically different from those in the top 10 percent. Nonetheless, the university argues credibly that “these students add to the diversity at UT because they have a different set of experiences and backgrounds to add to classroom debate … and often have already demonstrated an ability to cross racial barriers and maneuver outside their ‘bubble.’”

On the one hand, Texas is in fact doing what Harvard claimed to do, and what the Supreme Court validated in the Bakke case and subsequently: treating every applicant as a unique snowflake with distinct aspects that contribute to diversity. On the other hand, it's a bit difficult to escape the conclusion that what Texas really wants is to achieve a class with a sufficient number of minority students: quotas without quotas, in other words. This was also true in an important way of the Harvard admissions process embraced by Powell; it’s just that the court was happy to pretend otherwise.

Will Kennedy bite? He previously sent the Texas affirmative-action case back to the lower courts with instructions to scrutinize the admissions process carefully, and determine whether the holistic admissions process was truly necessary to achieve the compelling interest of educational diversity. This was a mixed signal, reassuring to liberals in that he didn't strike down affirmative action, and hopeful for conservatives who anticipated that he wanted to build a strong record to reject Texas’s argument.

It would be foolish to predict Kennedy's vote with confidence. He cemented his place as one of the great rights-creating justices in the court’s history with his gay-marriage decision in June, earning him the admiration of liberals and the frustration of conservatives. It would be tempting for Kennedy to cross back a bit now, giving the conservatives something they've always wanted.

But Kennedy lives in the same society as the rest of the elites who make admissions decisions. And in that world, the sorting-hat mechanism has undeniable cultural appeal. We love the idea of personalized, individualized admissions, even more than we did in the 1970s. Our children are unique snowflakes, at least to us. Rejecting Texas’ claim to admit part of its class in this holistic way would mean giving the lie to the admissions processes that guard bastions of elite power. It's also how the justices select law clerks. There’s good reason to believe that holistic admissions will survive.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net