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Education Week

October 14-18, 2013 . . . only on NRO

Race-Based Admissions after Fisher



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It’s depressing that, nearly six decades after Brown v. Board of Education, the legality and morality of racial discrimination in education continues to be a contested issue.

Consider: Last month the Obama administration issued “guidance” for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance predictably reiterates that the administration “strongly support[s] diversity” — including, of course, using discrimination in order to achieve it — but, as a legal matter, this is irrelevant if a school is sued, because whether in a particular case there are educational benefits stemming from such diversity is an educational judgment, not a political one.

The fact is that this “guidance” is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial discrimination: The administration promises that it “will continue to be a resource” for such schools. It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.

What’s worse, though, is that the guidance is probably telling many schools just what they want to hear: Study after study by the Center for Equal Opportunity has shown that universities across the country are only too happy to weigh race very heavily indeed in their admissions. But, if they (and their lawyers) read the Fisher decision honestly, it ought to make them gulp and reconsider such discriminatory policies. And I should add that, in the run-up to the ruling, it became clear how increasingly unpopular and discredited racial preferences in admissions are, even among liberals who had once supported them. This ought to prompt some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination.

In Fisher, the U.S. Supreme Court ruled that, before race can be used in university admissions, a university must give “serious, good faith consideration of workable race-neutral alternatives” to achieving the goals that are purportedly being achieved by weighing race in admissions decisions. The high court said that the lower court, on remand, “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

The Court also said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “could promote the substantial interest about as well and at tolerable administrative expense.”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. Universities must now be able to document their consideration of alternatives to weighing race, including any reason for not adopting such alternatives.

A particular example would be documentation of how the educational benefits of considering race in admissions would be greater than the educational benefits of considering other, nonracial factors instead. How is education improved by using race, exactly — and how much, exactly, are those benefits of “diversity” enhanced by considering race in admissions, rather than nonracial characteristics that provide actual diversity in backgrounds, such as income or parents’ professions/educational level or geography or age or work experience or whatever?

If a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

More fundamentally, schools must now be able to document why and how race is considered in student admissions and must periodically review and rejustify those considerations. And they must be able to document not only (a) the anticipated benefits but also (b) the possible costs associated with the consideration of race in student admissions at the university — and especially, with regard to the latter, the relative academic performance of members of groups that have received such favorable consideration: That is, they must address the “mismatch” problem of “preferred” minorities being set up for academic underachievement or failure by being admitted into schools where their academic qualifications are significantly below those of the rest of their classmates.

As the Fisher litigation continues, meanwhile, Texans should ask the University of Texas’s president, Bill Powers, “Mr. Powers, just how much of the taxpayers’ money from the people of Texas are you willing to spend in litigation to justify your school’s racial discrimination against wrongly colored Texans?” The predicted expense is now above $1 million.

Three other quick points:

1. Litigation expenses and bad policy aside, the amounts spent — that is, wasted — on these diversity programs is appalling, as Manhattan Institute fellow and NRO contributor Heather Mac Donald has documented.

2. As legally and morally dubious as racial preferences are in student admissions, they are even less defensible in faculty hiring and promotion — yet they are equally ubiquitous, with the added problem that here sex rears its ugly head as well. A recent lawsuit filed by a white male administrator against the University of Florida is a good wakeup call for university officials, many of whom seem to think that, if race can be considered in student admissions, it can therefore also be considered in employment decisions. This is just not true. The statutes and the law are different in the two areas, and there is no plausible legal justification for universities to weigh race in making employment decisions in 2013. Here’s a recent discussion of why universities have no legal justification for racial/ethnic/gender preferences in employment.

3. A word with regard to K-12 education: It is appalling that the Justice Department is trying to use old school-desegregation orders to block Louisiana’s school-voucher program (as John Fund discussed in the NRO piece that really broke this story). But, as I wrote more than a decade ago, the underlying problem is often that school districts — for shortsighted political reasons — have been too complacent in leaving these old orders in place, and so they must bear some of the blame. There are still a couple of hundred of these court orders out there, and school districts — and federal judges, on their own initiative — ought to be proactive in removing the ones that are no longer necessary and in fulfilling any that have not yet been fulfilled, six decades after Brown.

— Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief in the Fisher case.



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