Alito is mad

Justice Alito is mad that George W. Bush was too woke

In a dissenting opinion, Alito takes a potshot at Bush’s signature racial justice program.

By Ian Millhiser

The Supreme Court announced on Tuesday that it will not hear Coalition for TJ v. Fairfax County School Board, a lawsuit attacking a school admissions program that was considered a cutting-edge conservative idea a quarter century ago — and whose most prominent champion was Republican former President George W. Bush.

Two justices dissented, with Justice Samuel Alito writing an angry opinion attacking a school admissions policy that closely mirrors Bush’s signature racial justice program.

In the late 1990s, when Bush was governor of Texas, he signed legislation creating that state’s “top 10 percent” law for university admissions. As the name implies, Bush’s law guaranteed that Texas high school students who graduated in the top 10 percent of their class would be admitted to state-run universities. The program is still in effect, although the state’s flagship school, the University of Texas at Austin, only accepts the top 6 percent or so of students due to increased applications.

Bush proudly touted this program as a way to racially diversify Texas universities and as alternative to race-conscious admissions programs that Republicans have long disdained (programs that were recently declared illegal by the Supreme Court’s GOP-appointed majority). As Bush said in 2000 while campaigning for the presidency, top 10 percent-style programs “affect the pool of applicants of minority students available for higher ed in a positive way.”

What sets Bush’s program apart from the Harvard and University of North Carolina affirmative action programs that were recently invalidated by the Court is that it does not consider the race of applicants. Under Harvard’s system, race could be used as a kind of tiebreaker to determine which of several exceptionally qualified applicants should be offered one of the very limited slots in Harvard’s freshman class. Under Bush’s program, by contrast, students are mechanically admitted based on their class ranking.

Nevertheless, as Bush made perfectly clear many times, the purpose of this program was to achieve some degree of racial diversity in Texas’s public universities. It did so by leveraging the fact that many American communities remain racially segregated, which causes Black and Latino students to cluster in certain public high schools.