The Court Revisits Affirmative Action

In Fisher v. Texas, the Supreme Court can return to the wisdom of Brown—racial discrimination in public education is unconstitutional.

Last Wednesday, the Supreme Court heard oral arguments in Fisher v. Texas, a case that challenges the constitutionality of racial preferences by public colleges and universities when selecting and rejecting applicants.

 

I have a particularly strong interest in the case since I was the plaintiff in the 2003 Supreme Court decision Gratz v. Bollinger. The Court decided that the University of Michigan had been using a racial quota system for admitting undergraduates, which was unconstitutional. At the same time, however, in the companion caseGrutter v. Bollinger, the Court ruled that the university’s law school could continue to use racial preferences because it was supposedly employing race as just one factor in a “holistic” evaluation of students.

 

Grutter became the legal cornerstone of the continuation and expansion of racial preferences. When questioned about that, college leaders point to Grutter and say that preferences were given the green light. They often claim that the case “proved” that having a more “diverse” student body creates great “educational benefits” that justify the use of race.

 

Fisher put the advocates of racial preferences on the defensive.

 

During the oral arguments in the case, the lawyer for the University of Texas, joined by the lawyer representing the Obama administration, continued to push the argument that the race of an applicant to UT’s flagship campus was simply “one of many” factors considered during the admissions process.  The disingenuousness of their argument was demonstrated by the fact that they always followed up with the claim that but for the University’s freedom to consider race, UT’s minority enrollment would be dramatically impacted and the university would never be able to achieve a “critical mass” of minority applicants among those eventually admitted. 

 

Notably, neither the university nor the Obama administration could provide the justices with a meaningful definition of “critical mass” much less how anyone knows that “minority” students won’t be able to learn or contribute on campus unless that mystical number is reached.

 

Surely, then, race is not, as the university’s lawyer characterized it, “only one modest factor among many,” when at the same time the university insists that its elimination would cause “diversity” rates to plummet.  The truth is that in this zero-sum game, race is the major, overwhelming and ultimately deciding factor every time it comes into play.

 

Justice O’Connor’s opinion in Grutter—the case in which, for the first time, the Court decided that the non-remedial interest in enrolling a racially diverse student body was sufficiently compelling to justify the use of racially discriminatory admissions policies—rested heavily on the supposed educational benefits of enrolling such a student body.  These so-called benefits had been heavily disputed even before that decision was penned and have never been empirically established. 

 

Even more telling is the fact that at a Harvard symposium (celebrating the five-year anniversary of theGrutter decision,) attended by academics who fully support racial discrimination to achieve “diversity,” Justice O’Connor expressed her own dismay over the fact that follow-up studies had not been done to justify her decision to temporarily shelve (for 25 years) the “equal protection clause” of the 14thAmendment.  In fact just the opposite has happened. Studies since Grutter,  most notably those conducted by UCLA law professor Richard Sander, show that race preferences do calculable harm to the intended beneficiaries.  

 

Several of the amicus briefs that were submitted in Fisher, including one from Professor Sander and National Journal writer Stuart Taylor, showed that instead of creating educational benefits, racial preferences actually do educational damage. Unfortunately, that crucial matter did not come up during the arguments. Let us hope that the justices read those briefs before making their decision. The belief that only good results come out of using racial preferences is untenable; once that idea is discarded, the argument that states have a compelling interest in discrimination falls apart.

 

Even before–and especially since–the Michigan decisions were handed down in 2003, the public has shown a complete disdain for the government’s use of race to prefer some people while discriminating against others. 

 

For example, shortly after the decision in Grutter, Michigan voters joined California, Washington and Florida in eliminating race preferences in college admissions. Voters in Nebraska and Arizona also chose to abandon state sponsored discrimination.  More recently, legislators in New Hampshire eliminated race preferences in their state and Oklahoma voters are poised to do the same this November. 

 

Eliminating preferences would not be a radical move. Indeed, 27% of the population (a critical mass, if you will) currently lives in race-neutral states, each of which has elected to live by Dr. King’s exhortation to judge one another by the content of our character and not by the color of our skin.

 

It is easy to get caught up in the intellectual arguments promoting the use of race to benefit some—while penalizing others—in order to promote “diversity.”  Too often we refer to Bakke, Gratz, Grutterand, soon, Fisher, and think in the narrow terms of complicated legal wrangling.  That is a mistake. It causes us to lose sight of the crucial fact that we are all individuals, with individual dreams and goals,not “representatives’ of this or that group. 

 

All that anyone asks for is an equal opportunity to compete without having the immutable characteristic of skin color counted against her.  It was wrong when being of a certain race kept you out of colleges in the past, but it’s just as wrong that being of a certain race gives you a big advantage today.

 

Because of the decision in Grutter, we are still living with government-sanctioned discrimination. As I tell the stories of those of us, like Barbara Grutter and Abigail Fisher, who have chosen to stand up for our right to be treated equally under the law, it reminds me that racial preferences are never benign.  Tomorrow it will be someone else’s son or daughter who will have his or her hopes and dreams dashed by state-sponsored discrimination.

 

University of Michigan philosophy professor Carl Cohen recently wrote that Grutter “is one of those decisions that were wrong on the day they were decided; it is the Plessy case of the 21st century.”

 

I agree with him. When the justices decide Fisher, they should overrule Grutter and restore the constitutional directive that guarantees everyone an equal opportunity without regard to his or her race. That would be both educationally good and morally right.

 

I hope the Court in Fisher gets us back on track by reaffirming the principle established over a half century ago in the landmark case of Brown v. Board of Education. In that famous decision, the Court simply said, “racial discrimination in public education is unconstitutional.”  It was the right ruling then.  It would be the right ruling now.

Reprinted from The John William Pope Center for Higher Education Policy

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1 comment to The Court Revisits Affirmative Action

  • sedonaman

    Re: “Michigan voters joined California, Washington and Florida in eliminating race preferences in college admissions. Voters in Nebraska and Arizona also chose to abandon state sponsored discrimination. More recently, legislators in New Hampshire eliminated race preferences in their state …”

    Is that a fact? If it is, why do the schools in Arizona still have staff members like “Special Advisor To The President, Diversity and Inclusion” who is paid $98,400, and the “Assistant Director of Graduate Diversity Programs” who is paid $51,568? Or “Vice Chancellor for Equity and Inclusion” with a staff of 17 that consumes more than $1 million a year, and expanding at the University of California, Berkeley? Why does the UC still have an active Committee On Affirmative Action And Diversity to find ways to circumvent the will of the people?

    The point is that just because the people pass a law banning race preferences, there is no reason to believe the schools will comply. What I’d like to know is how do they know they can defy the law and get away with it?

    For additional reading, see Heather Mac Donald’s writings:

    http://www.city-journal.org/2012/cjc0920hm.html

    http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=26670

    http://www.latimes.com/news/opinion/la-oe-mac_donald-2008sep07,0,1237273.story

    http://www.city-journal.org/2011/cjc0714hm.html

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