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Bench Memos

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Obama Administration Supports Racial Preferences (Again)



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On Friday the Obama administration filed a brief with the U.S. Court of Appeals for the Fifth Circuit urging it to rule in favor of the University of Texas’s use of racial and ethnic preferences in admissions. This is the Fisher case that the Supreme Court decided last summer and sent back to the Fifth Circuit, telling it that it had been too deferential — not strict enough — in the scrutiny it had given the school’s use of preferences. It’s the administration’s third brief on behalf of the school’s practice of discrimination, following earlier filings in the Supreme Court and, before that, in the Fifth Circuit, when the case was first on its way up.

The administration’s brief is predictably bad. Despite the Supreme Court’s ruling, it tries to smuggle plenty of deference into the University’s decision to discriminate in order to achieve greater and greater “diversity” (that is, more blacks and Latinos, and fewer whites and Asians). It supports the school in its desire to manipulate its ethnic numbers, not just campuswide, but on a classroom-by-classroom basis. It also supports the school in wanting to achieve higher numbers for Latinos because, well, there are more Latinos in Texas than there used to be (what Justice Powell in Bakke called “discrimination for its own sake”). And it endorses dubious social-science evidence to support these race-based outcomes, like “student surveys to determine . . . the degree to which minority students feel isolated.”

Finally, there is nothing, not one word, in the brief urging the court that, in addition to these dubious benefits, perhaps some consideration should be given to the costs of racial discrimination by the University of Texas: It is personally unfair, passes over better-qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with the school, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problems underlying why so many African Americans and Latinos are academically uncompetitive; and it gets this state university involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).



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