Illustration by Bloomberg View
Illustration by Bloomberg View

With an African-American president and an African-American attorney general, does America still need affirmative action? Can it honestly be said that blacks require a finger on the scale of the meritocracy?

Last week the U.S. filed a brief in support of the University of Texas in Fisher v. Texas, which will probably be the Supreme Court’s most important case next year. Abigail Fisher, white, wanted to go to college at the University of Texas at Austin, but didn’t get in. So she sued, charging the university with violating the various legislative and judicially imposed rules about minority admissions.

It is clear from the briefs in this case that the Supreme Court’s attempt nine years ago, in Grutter v. Bollinger, to clarify this muddy situation has not worked. It remains unclear what is and is not permissible when it comes to how much weight colleges and universities can give an applicant’s ethnicity. Admissions officers and applicants alike are as confused and uncertain as ever.

The Grutter case contrasted undergraduate and law school admissions at the University of Michigan. It held that a rigid mathematical formula (like Michigan’s undergraduate policy), in which extra points were given to minorities, was unconstitutional at a state institution, but a more flexible policy (like one used at the law school) could use race as one of many factors without violating the Constitution. “Holistic” is the word the court used, and it has become a standard one-word description of the approach the court wants.

The trouble is, there is really no difference in outcome between these two approaches. In both, a white person is denied a slot and a minority gets a slot, when if there were no favoritism, it would be the other way around.

Under the numeric system the court rejects, it might be possible to know whether Fisher would have been admitted to the University of Texas if not for racial preference. Under the holistic method the court prefers, there is no way of knowing.

One of the problems with affirmative action is that the number of people who suspect they have been victims of reverse discrimination far exceeds the number of actual victims. This is especially true at top schools such as Texas and Michigan, where most applicants of all races are turned down -- for reasons having nothing to do with race.

The University of Texas’s undergraduate admissions system uses a combination of numeric and holistic considerations. The university’s main Austin campus is required by law to admit the top 8 percent of each high school graduating class in the state. (All other campuses must offer acceptance to the top 10 percent.) That uses up most of the slots. The rest are awarded on the basis of two indexes. An explicit favoritism for blacks and Hispanics was dropped in 1996, after a lower court ruled that race was an illegitimate consideration. Then it was added back into the mix -- holistically, of course, only as one of many factors -- in 2004, in response to Grutter.

The short answer to the question, Do we still need affirmative action, is yes. But the reasoning matters. The purpose of affirmative action is not, if it ever was, reparations for wrongs done to a student’s ancestors. Nor is it intended primarily for the benefit of the minority students who do, in fact, benefit.

The purpose of affirmative action programs is to provide and promote diversity. This much-abused notion has a legitimate core: In a multicultural society, a state university (or any university) ought to reflect as many of the strands of society as possible. This is part of the education it offers its students and part of the service it performs for the state. And -- here is the part many people find hard to swallow -- no one has the right to attend a state university, based on intelligence or merit or whatever point system the admissions office develops. Being Hispanic is itself merit if Hispanics are needed to serve diversity.

The question is whether the University of Texas’s particular stew recipe meets the Grutter standard. Is it “holistic” enough? One of the university’s arguments is that, although there may be plenty of blacks and Hispanics among its 50,000 students, many individual classes have few or none.

This argument seems like a stretch. Affirmative action can be toxic. We agree with the Supreme Court that it ought to be reserved for vital state interests and applied as sparingly as possible. And we agree that it should be temporary, not a permanent part of the American landscape.

This particular application of affirmative action policy may not be constitutional. But in general, affirmative action is still necessary.

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