In my last post, I discussed the controversy that the Texas Top Ten Percent Plan has created at the Supreme Court and the University of Texas. Though it has never been challenged directly, the Ten Percent Plan was the topic of an interesting debate between Justice Thomas and Justice Ginsburg.
Justice Thomas said there was nothing discriminatory about the Plan; Justice Ginsburg insinuated that the Plan was just an affirmative action program in disguise.
The text of the Ten Percent Plan doesn’t mention racial groups; it simply says that any student graduating in the top ten percent of her high school class will be able to enroll in any public university in Texas (most choose the University of Texas). In other words, the Plan doesn’t formally “classify on the basis of race.”
In contrast, the University of Michigan’s plan in Gratz v. Bollinger gave a boost to individuals from preferred racial groups. The Supreme Court has said that laws like that — i.e. laws that do classify on the basis of race — are subject to strict scrutiny, the most stringent form of judicial review.
But that doesn’t mean that a law is okay just because it doesn’t classify on the basis of race (i.e. mention racial groups). In fact, some “race-neutral” laws may offend the Equal Protection Clause because they are adopted for a discriminatory purpose.
This is a potential problem for the Ten Percent Plan. The Equal Protection Clause forbids government action taken for the purpose of attaining a “racial balance.” Yet the legislature enacted the Plan in order to boost the number of underrepresented minorities at the University of Texas. Whether that counts as a discriminatory purpose that ends up invalidating the Plan remains to be seen.