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.
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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.”
Time to sweep racial preferences into history's dustbin. While we're at it, toss out heritage preferences as well. Let the Kennedys and Bushes earn their way into Harvard and Yale instead of having it given to them as a right of birth. Cordially, Bill
You're right. They should earn their way in the way Romney did and not because of racial quotas or because one of their parents went to that school the reasons Obama got into Harvard.
Bill, You reference what really goes on here. Rich whites and Liberal elites feel guilty about their own racism. But of course they do not want to harm themselves or THEIR children with any remedy. So what happens? Rich white kids and liberal elites get their kids into top schools through legacy and special admissions, and give the spots otherwise earned by middle class whites and Asians to blacks and hispanics. That way they get their kids in and get to preen about how politically correct and sensitive they are on the backs of other people's children. There is really no getting around it, the true racists in this country today or the rich and liberals who insist on categorizing people by race to make themselves feel better.
Good analysis by Clegg, especially on the misleading arguments that are being used to uphold racial preferences. I happened to see Lou Dobbs last night and he devoted quite a bit of air time to this issue. The proponent of preferences (always euphemistically called "affirmative action" but what the admission policy actually does is to regard certain applicants as more desirable than others merely on account of their ancestry) spun the dispute as whether "minority" students would have a chance at college.
That isn't the issue at all. The US has such a range of colleges and universities and so much financial support for students that even those who graduate from high school with perilously weak academic abilities can get into some institution of "higher education." (To a great extent, of course, they are merely trying to get the students up to modest high school levels in reading, math, etc.) It isn't a question of whether those students can attend college, but whether a tiny number of them will, through racial preferences, be invited to attend "elite" colleges and universities instead of the less prestigious ones they could have gone to based on their academic ability.
Racial preferences don't get more "minority" students into college; they just shuffle a few of the better ones around.
As for the supposed "educational benefits" that contention was never more than hot air. The University of Michigan commissioned some conclusion-driven "research" that O'Connor and her colleagues in the majority thought enough of a fig leaf to permit them to defer to the supposed expertise of university officials. If the Court insists on strict scrutiny of the benefits this time around, it will find that the evidence in favor is weak and conjectural, while the evidence against is substantial. Far from there being a "compelling governmental interest" in racial preferences, there is pretty compelling case that they are damaging.
Why would getting rid of affirmative action reduce the number of black or hispanic students at selective schools? Is it because the people working in the admissions offices are racists? Why are these bastions of liberalism hiring bigots? Or maybe it's because many of the blacks and hispanics currently being admitted aren't actually qualified? I'd love to see those awkward questions get answered.
California voters passed Proposition 209, which prohibits consideration of race in admissions at public univerities. Prior to the Gruber decision, my wife worked at a major California state university dealing with the media. The Los Angeles Times ran a story that stated that Prop. 209 resulted in fewer monorities at California universities. She contacted the author to request a correction because the opposite was true: in fact, minority attendance was approximately the same after Prop. 209 went into effect. She was then contacted by the school's dean (the LA Times had complained to the Dean). The Dean told her that Sandra Day O'Connor reads the LA Times and supporters of racial admissions policies do not want her to find out that Prop. 209 had no effect on minority enrollment. He eluded to a coordinated effort between University leaders and the Los Angeles Times to convince Sandra Day O'Connor to uphold racial admissions policies in the Gruber case. Sounds like this type of stuff is still going on . . .
Two thoughts here: The Supreme Court is not meant to be another legislature, it is meant to be an adjudicator. It cannot ignore the laws on the books or interpret the Constitution creatively. That way lies great trouble (think Dred Scott, Plessy v. Ferguson, Row v. Wade, etc.) The law is the law and the Supreme Court should enforce it. Sandra Day O'Connor was simply wrong in the Gutter decision.
As for the NYT, why is anyone surprised its reporting is biased? That has been its modus operandi ever since the current publisher took over.
It seems to me that an article in a real newspaper would start by addressing the rationale for affirmative action - which is exactly what? Diversity? Is diversity an end or is it a means? Where is the empirical evidence that students in diverse universities perform at a higher level than those at homogeneous ones? How do students at the Naval or Air Force Academies or West Point fare compared to more heterogeneous student bodies?
Or does affirmative action exist to help disadvantaged groups? Do present or past grievances of groups justify discrimination against an individual such as the plaintiff against UTA? If it is to help disadvantaged groups, how does it help the 99.9% of minority students who don't get admitted? Is it now OK to be part of the 99% racially as well as economically? Do we therefore demonize the 1% who got in?
Is affirmative action the sole remedy to the alleged problems it seeks to solve?
It seems to me if we really want to help minorities as individuals and as groups, we should start by fixing the primary and secondary schools that they inhabit, which are disproportionately inner city schools. But we wouldn't want to upset the teacher's unions now, would we? Far better to hold millions of children hostage to their zip code for their entire lives.
you left out part of the spin: in 2003, when the Court decided Grutter v Bollinger in favor of limited racial preferences at the Law School, it also decided Gratz v Bollinger, which rejected racial preferences in the undergraduate colleges.
I know, because I worked at the University of Michigan during the court cases. here's an anecdote for you:
I had to write some copy for a website about the cases, and I said something about the U-M having gotten a "a split decision." I got an email from one of the U-M lawyers who told me that "we aren't referring to it like that." oh ok--so we're just going to pretend we didn't lose one? I always found that funny.
