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Trump's Affirmative Action Probe Won't Find What Social Conservatives Expect

The Supreme Court believes diversity is a worthy goal in college admissions. The question is always how to get there.
The Supreme Court believes diversity is a worthy goal in college admissions. The question is always how to get there.
David Shankbone
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Liberals, friends of affirmative action, champions of diversity, all of you, my people — please, let’s catch our breath. Can we all quit the knee-jerk belly-aching over the Trump Justice Department’s interest in revisiting higher education admissions schemes for five minutes?

Take it from Texas. This is not going to go the way the social conservatives think it will or want it to. Oh, no. The wall that this thing will ram into nose-first before it can even get its bicycle going is the Wallace Hall wall — a matter that will not sit well with the huddled masses of social conservatives yearning to be oppressed.

Social conservatives want to find out that affirmative action is unjustly keeping white kids out of college, and make no mistake, there is a gaping hole in the Supreme Court’s standing rule on affirmative action.

But if the Trump Justice Department ever gets to that hole, it’s going to find a whole bunch of rich white kids with insider connections jumping through it. That’s a bad thing for affirmative action, but it doesn’t all work out quite the way some conservative narratives would have it.

When Justice Anthony Kennedy wrote the majority opinion in Fisher v. University of Texas last year, upholding UT’s affirmative action program, he refused to look at what should have been the program’s fatal flaw. An investigation spurred by maverick UT regent Wallace Hall of Dallas had uncovered a secret backdoor admissions program at UT that got kids admitted who wouldn’t have been able to get in the front door of the regular admissions department.

They weren’t all rich white kids, but most of them were. It didn’t hurt either to be a Hispanic kid whose aunt or uncle was chair of an important Texas legislative committee. If you and I had to come up with a demographic category to encompass all of the hundreds of kids UT admits through the backdoor every year, maybe we could call them Juice-o-Americans. They may not have the grades, but, oh man, have they got the juice.

Maybe you say, “So what?” Everybody knows everybody cheats. People with connections get their way one way or another. OK. True. But in this special case, in the matter of affirmative action, an unacknowledged secret backdoor admissions system flies in the face of the central tenet that Kennedy invented and has insisted on in gauging the constitutional muster of college admissions affirmative action programs.

It’s supposed to be a workaround for earlier Supreme Court rulings that made straight-up racial quotas illegal. According to Kennedy’s doctrine, a university that wants a federal court to sign off on its affirmative action program must allow the court access to its admissions system in a manner that borders on the investigatory.

In fact, before the Kennedy court would agree to give the Fisher case a final hearing, it sent the case back down to a lower court with a finger-wagging message, chastising the lower court for having been too trusting of UT and telling it to dig harder for the truth.

The high court has ruled in other cases that a university can’t use race as a criterion in deciding admissions unless it has eliminated every other means it can think of to achieve diversity. Before the court would hear Fisher the last time, it wanted the lower court to make sure it had discovered every last thing about how UT does admissions.

When the Fisher case went back up to the Supreme Court last year, constitutional lawyers filed “friend of the court” briefs basically saying to the high court, “Psst, they forget to tell you about Wallace Hall.”

Hall, appointed to the University of Texas System Board of Regents in 2011, had sleuthed out a system of backdoor admissions so egregious that the UT law school, which is supposed to be one of the nation’s most respected, was producing a special subset of graduates who could not pass the Texas bar exam in three tries.

The undergraduate school was admitting hundreds of applicants who didn’t qualify for admission under the published standards, some of whom, in fact, had already been denied admission by the admissions office. To counter Hall’s personal investigation, the university commissioned a probe by a private investigation company. That report was a whitewash, of course, but even as a whitewash, it revealed that college admissions at UT were up for auction.

One thing was never made quite clear or settled: If your kid is a less-than-stellar student but you want him to get into UT, is it better to be a rich Daddy Warbucks-type or a sleazy politician? The best thing, according to what Hall found, would be to cover your bets by being a rich, sleazy politician. Then your kid goes straight to the head of the class.

Another thing you might wonder: Who is this Wallace Hall? Is he some kind of pot-stirring hippie liberal with a grudge against people with money and influence? Well, your first hint there is that he was appointed to the board by Rick Perry, who, as governor of Texas at the time, carried a gun on his morning runs around Austin and shot coyotes if they got near his dog.

Hall, who is no longer a regent, is a successful businessman and product of a way-back UT family. He is very popular with conservative groups in Texas that always seem to want him as their featured speaker. But he’s also a rigid follower of the facts.

In the end, if there is a fatal flaw in UT’s affirmative action admissions system, it will be Hall who found it. But he did not get there by bending the facts to buttress a preconceived narrative. When he got to the hole in the system and saw rich kids, not poor kids of color, jumping through it, he called it the way it was, even though doing so made him bitterly unpopular among some people of his own class and ilk.

Kennedy refused to consider Hall's findings in deciding Fisher, dismissing them as “extrarecord materials,” which is Supreme Court slang for “stuff I’m not even going to look at.” In a dissent, Justices Samuel Alito and Clarence Thomas and Chief Justice John Roberts said the Hall findings were not only pertinent but devastating.

Social conservatives may not like the picture they see when they finally get to the fatal flaw in the University of Texas affirmative action policy.
Social conservatives may not like the picture they see when they finally get to the fatal flaw in the University of Texas affirmative action policy.
apologies to ASDF Media

Alito wrote of the backdoor admissions system exposed by Hall: “Under this longstanding secret process, university officials regularly overrode normal holistic review to allow politically connected individuals — such as donors, alumni, legislators, members of the Board of Regents, and UT officials and faculty — to get family members and other friends admitted to UT, despite having grades and standardized test scores substantially below the median for admitted students.”

No way, the dissenters said, can something like that be going on while the court deliberately ignores it, and then the court tells the world that the UT system has lived up to and passed Kennedy’s test.

If the Trump Justice Department goes after affirmative action, it will have to start at Fisher, because Fisher is now the nation’s prevailing rule. And then, oh, boy, watch the ironies stack up on the ironies.

Ironic enough that the hole in Fisher is not about minority poor kids getting admitted but rich kids with connections. And I guess when that irony gets well burnished in the media, all us liberal defenders of affirmative action will be toasting each other and cheering.

But what about the next irony? This flaw may be enough to take down the court’s standing rule on affirmative action. What will it mean, after all, if all the holy protestations of places like UT, which says its motives are pure and its only goal is justice, turn out to be lies and cover-ups? What if it turns out that’s all just a political line, and the real goal is to keep rich people and powerful politicians happy? Then how does the high court trust these people to carry out a rigid and pure policy of affirmative action?

The ultimate lesson may be that it isn’t possible to achieve justice by pursuing it as some kind of sport between interest groups, especially if you’re going to hide the ball anyway. Might as well just give up and go back to the damn law, unsatisfying as that may be emotionally.

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