Fact-Checking the New York Times
The paper misleads on racial preferences.

Justice Sandra Day O’Connor in 2003


The Supreme Court’s decision Tuesday to grant review in Fisher v. University of Texas, a case challenging that school’s use of racial and ethnic preferences in undergraduate admissions, got front-page, next-day treatment in the New York Times. Unfortunately, the article is misleading in some important ways. No surprise: The mainstream media’s efforts to pressure the justices are under way.

The article begins with a suggestion (repeated later on) that the Court is somehow reneging on a promise that it would allow racial preferences to remain in place for 25 years. Here it is, less than nine years into that deal, and those pesky justices are back.

What Justice O’Connor wrote, in her 2003 opinion upholding law-school admissions preferences in Grutter v. Bollinger, was: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” So 25 years was just the outer limit. More than a third of that time has now passed, and it makes sense for the justices to see how things are progressing. After all, it would be most imprudent for the Court to turn a blind eye to what schools are doing for the full 25 years and then discover — well, what do you know? — that schools are still giving race an automatic weight. The Center for Equal Opportunity’s studies in fact show this to be the case, and it has already happened once before, in the 25 years between the Court’s Bakke decision in 1978 (which forbade the use of outright quotas) and the 2003 University of Michigan cases. There are good arguments that, even if the Court does not overturn Grutter, what the University of Texas is doing is in violation of it.

What’s more, the legal and demographic landscapes are constantly changing; and the empirical case for diversity’s “educational benefits” has been significantly weakened by recent studies. In particular, new data showing the mismatching of individuals and schools — i.e., demonstrating that students are accepted to schools that are too demanding for them because of affirmative action — make clear that African-American and Latino students are themselves among the casualties of racial preferences.

Finally, it was very odd in the first place for Justice O’Connor to say that a constitutional right to be free from racial discrimination would be held temporarily in abeyance.

The article states that the Court’s action “thrust affirmative action back into the public and political discourse after years in which it had mostly faded from view.” The issue is later described as “long dormant.”

Where to begin? The issue was the subject of recent ballot initiatives in Michigan (2006), Nebraska (2008), Colorado (2008), and Arizona (2010), in addition to being on the ballot this year in Oklahoma and being banned by a New Hampshire statute that became effective at the beginning of 2012. A major federal contracting affirmative-action program was struck down in 2008 by the Federal Circuit in Washington, D.C.; employment preferences were the underlying issue in the New Haven firefighters case before the Supreme Court in 2009; affirmative action in redistricting (i.e., racial gerrymandering) is a recurrent issue administratively and in the courts all over the country. And those are just a few examples.

The Times would have the justices believe that everyone was happy, and now here comes the Supreme Court, getting everyone all riled up. Nonsense. Americans have not made peace with racial discrimination, and they never will. Even the Times itself acknowledges, in the accompanying article discussed below, that the issue has remained “at the boiling point” at “dozens of universities across the nation.”