In 2007, a white high-school senior named Abigail Fisher from Sugar Land, Texas, applied to UT. She was in the top 12 percent of her class at Stephen Austin High School, below the cutoff, and UT didn’t take her as a holistic admit. She sued, arguing that the use of race in any part of the admissions program violated her rights. She couldn’t prove that she would have gotten in without the new program; her injury, she argued, was simply having to be judged by race in any degree.

In 2012, Abigail Fisher graduated from Louisiana State University. That same year the Court heard her case—even though, by then, the case was moot. Many people expected Fisher I to be the death knell for Grutter; but in 2013, the Court, 7-1 reaffirmed the Grutter rule.* It remanded the case to the Fifth Circuit to make sure that Texas’s program really passed “strict scrutiny”—meaning, in essence, that it must further a “compelling” interest and that it must be “necessary” to do so. Was the UT program really necessary, in light of the top 10 percent plan and other circumstances? In 2014, the Fifth Circuit looked again at the program and concluded that it passed that demanding test. Now the case is back at 1 First St. NE.

The Texas plan, Rein told the Court, is unconstitutional because it is a quota; it doesn’t actually measure how many students it affects or have a target number for a “critical mass” of students; only a few students are admitted because of race, suggesting that the program’s not needed; and it’s impossible to know how many students are really admitted because the University doesn’t keep detailed records. But this is a Catch-22—if the program did define a clear target and measure and record its progress, then it really would be an unconstitutional quota.

It is tempting to call this doublethink, but it’s not. The arguments aren’t meant seriously as arguments. There’s been a legal debate about “diversity” since 1978; everybody knows all the moves and nobody’s mind is changing. CFR’s real claim is that use of race to increase racial and ethnic diversity at institutions like the University of Texas is immoral, dangerous, and a violation of the equal-protection rights of whites. It can’t make that argument openly—Fisher I held that universities can use race. So it uses coded language.

The argument was as dispiriting to hear as it must have been to conduct. In the weird constitutional language of affirmative action, no one is allowed to say what they really mean. Under the Bakke rule, the only “compelling interest” a university can pursue is the benefit of “educational diversity”—that is, the idea that all students receive a better education if their classrooms include students of different racial and national origins.

Thus, a lawyer who argued that minority students deserved affirmative action, or received a special benefit from it, would lose on the spot. But the anti-affirmative action justices won’t play by that rule. Scalia now thinks minorities would be happier with their own schools. Justice Alito wondered why minority students can’t go on to have good careers if they go to lesser schools. (The orthodox answer is that Alito is asking the wrong question; he needs to ask how their presence benefits all the students.)