RUTHFULLY YOURS

On Oct. 10, the Supreme Court will consider the constitutionality of granting racial preferences to African-American and Hispanic college applicants over whites and Asian-Americans. The defendant is the University of Texas at Austin. The plaintiff, Abigail Fisher, a white woman, was denied admission in 2008 and filed suit (along with another plaintiff who has since dropped out) alleging that the university discriminated against her on the basis of race.

Given the court’s approval of racial-preference programs in higher education in 1978 (Regents of the University of California v. Bakke) and as recently as 2003 (Grutter v. Bollinger), its decision to revisit the matter with Fisher v. University of Texassuggests an inclination to rule against affirmative action this time. That would be proper, as shown by the answers to four basic questions:• What does the Constitution mandate regarding the consideration of race? The 14th Amendment guarantees to “any person,” not just minorities, “the equal protection of the laws.” The Supreme Court explained in Shaw v. Reno (1993) that its “central purpose is to prevent” states from “discriminating between individuals on the basis of race”—thus creating, as it stated in Richmond v. Croson (1989), “a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement.”

The University of Texas, in its brief to the court, admitted that “[a]dding race to the mix . . . increases the chance” that an African-American or Hispanic applicant “will be admitted.” The school requires that race be displayed on the front of each applicant’s file.

• Does affirmative action help or harm preferred minorities? The Supreme Court recognized in Richmond v. Croson that affirmative-action racial classifications “may in fact promote notions of racial inferiority.” For example, when racial preferences are granted to some, prospective employers inevitably suspect that minority graduates may have obtained diplomas only due to racial preferences. The many minority graduates who did it on their own are thereby unfairly stigmatized.

Associated PressStudents at the University of Texas at Austin campus

Preference recipients themselves often exhibit adverse effects. Sociologists Stephen Cole and Elinor Barber found in a 2003 study that minority members who obtained admission to colleges with racial-preference programs received lower grades and experienced academic problems and lower self-esteem than minority students who were admitted without these programs.

• Were racial preferences instituted to obtain “enough” minorities or to further political correctness? When the University of Texas instituted its racial-preference program in 2004, African-Americans and Hispanics were 21.4% of the incoming class—exceeding the 13.5% to 20.1% minority enrollment that the Supreme Court suggested in Grutter was adequate diversity. Adding another minority, Asian-Americans, raised the figure to almost 40%.

The experience of the University of California has also demonstrated no need for affirmative action. In 2002, after a 1996 California referendum halted racial preferences for admission, African-American enrollment returned to the percentage that had been attained using racial preferences. In the 2007-10 period, African-American enrollment averaged 40% above the enrollment previously attained using affirmative action, and by 2008 Hispanic enrollment was 100% higher.

Apparently recognizing that adequate diversity already existed, the University of Texas invented a new requirement: There must be a certain degree of diversity in classrooms, not just in the university overall. The school claimed that too many of its small classes (with five-24 students) had fewer than two minority students. But students freely choose which classes to attend and which course of study to pursue. Absent unacceptable pigeonholing of minorities into classes they do not want, numerical diversity in every class is unattainable.

Like most universities, Texas offers no assistance to Asian-Americans. To the contrary, the affirmative-action program prefers blacks and Hispanics over Asian-Americans. American history is replete with discriminatory college quotas on Jews and Asian-Americans, for example, because on merit alone they would fill too many “slots.” This country must reject the return of such discriminatory quotas—the reciprocal of affirmative action.

• Is diversity furthered by racial preferences? All agree that obtaining, as the Supreme Court phrased the purpose of racial preferences in Grutter v. Bollinger, “widely diverse . . . ideas and viewpoints” in the school is a worthwhile aim. But no one seriously believes that depends upon race.

As whites are all not conservative or liberal, carnivore or vegetarian, etc., blacks are equally diverse: compare the political views of Al Sharpton and Herman Cain, or the approach to the law of Attorney General Eric Holder and Supreme Court Justice Clarence Thomas. The Supreme Court previously held in J.E.B. v. Alabama (1994) that any assertion that the presence of African-Americans would allow diversity in ideas is a classification “that rest[s] on impermissible stereotypes [that] violate the Equal Protection Clause.”

The insincerity of academia’s insistence on racial preferences as a means of obtaining intellectual diversity is betrayed by its rejection of an obvious means to that end. A 2005 national study conducted by Stanley Rothman, Robert Lichter and Neil Nevitte of more than 1,600 faculty members reported that, in 1999, 72% identified themselves as liberal versus 15% conservative, and 50% as Democrats versus 11% as Republicans. Academia has taken no serious steps to enhancing the diversity of thought in its faculty, who of course direct the path of thinking in classes.

Americans today have traveled a great distance from Jim Crow. Few, if any, approve of racial discrimination. In 2003, Justice Sandra Day O’Connor, in Grutter v. Bollinger, foresaw a time not-too-distant—”by 25 years from now”—when racial preferences would become unnecessary. The dramatic proof that the nation has reached that stage is the election of an African-American to the highest office in the land, as well as to countless other elected offices across the country on a regular basis.

In its ruling in Fisher v. University of Texas, the Supreme Court should follow Chief Justice John Roberts’s excellent instruction in the closing of his 2007 opinion in Parents Involved In Community Schools v. Seattle School District No. 1: the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Mr. Walpin, an inspector general under President George W. Bush, is a New York attorney and a director of the Center for Individual Rights, a pro bono lawyers group that has represented plaintiffs in racial-preferences cases.