The Supreme Court should grant the petition for review that has been filed in Fisher v. University of Texas, a case challenging a university’s use of racial and ethnic preferences in undergraduate admissions.
The Supreme Court needs to revisit this area — its last decisions were in the University of Michigan Grutter and Gratz cases of 2003 — and the Fisher case is a an excellent vehicle.
Clearly, those cases were not intended to be, by their own terms, the last word. In upholding law-school admissions preferences in Grutter, Justice O’Connor famously warned in her opinion for the Court: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” A third of that time has 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 — the schools are still giving race an automatic weight. That, after all, has already happened once before, in the 25 years between the Court’s Bakke decision (which forbade the use of outright quotas) and the University of Michigan cases.
What’s more, the landscape has changed since 2003, there is much important new evidence, and Fisher raises problems beyond Grutter.
The first thing to consider is the changing face of America. Take a look at this census chart. It shows that America is increasingly a multiracial and multiethnic country. Over one in four Americans now say they are something other than simply “white.” Blacks are no longer the largest minority group: Latinos are.
And blacks and whites are the slowest growing populations. Since the last census, the Latino population has grown by 43.0 percent, and the Asian population has by 43.3 percent. The black population has grown by only 12.3 percent, and the white population by only 5.7 percent.
And it’s interesting that the number of Americans who identify themselves as belonging to “two or more races” has grown by 32.0 percent. That doesn’t even count those Americans, like our president, who are multiracial but for whatever reason declined to identify themselves in that way on the census form.
In such a country, it is simply untenable for our institutions to classify and sort people on the basis of skin color and national origin, and to treat citizens differently — some better, some worse — depending on which silly little box is checked.
It is no longer the case that Jim Crow–advantaged whites are being displaced by just-liberated African Americans. Indeed, it is more and more the case that preferences are used to give an advantage to Latinos over Asians — to such an extent that, as one recent Associated Press story documents, Asian students try at all costs to avoid identifying themselves as such on their college admission applications. Now what is the historical justification for that?
Second, consider that the problem is getting worse at many schools. You would think that, as the 25-year period progressed, universities that use racial and ethnic preferences would be weaning themselves off them. But this isn’t happening, as studies conducted by the Center for Equal Opportunity show. Our most recent study of undergraduate admissions, at the University of Wisconsin, found the severest discrimination that we’ve ever found, before or after Grutter. We found the worst law-school discrimination we ever found at Arizona State, also post-Grutter. We likewise found severe law-school discrimination and undergrad discrimination in, respectively, Nebraska and Ohio post-Grutter. And we found law, undergrad, and med-school discrimination even at the University of Michigan (before voters banned it) — and worse undergrad discrimination than there was in the system that the Supreme Court struck down in Gratz, on the same day it upheld the discrimination in Grutter.
Third, it is becoming clear that the reason for preferences is political and ideological, not educational. It was probably naïve for the Court to have ever thought it would be otherwise. Thus, the pressure for of racial preferences is less likely to come from white-lab-coat educators carefully calibrating educational benefits than from entities like the American Bar Association, the Obama administration (with its recently released diversity “Guidance” for schools), and political hacks — none of whom are owed any judicial deference. It’s not educational benefits that are sought so much as campuses that “look like” the rest of the population, which is just the “discrimination for its own sake” that Justice Powell warned against in Bakke.
The Fisher case is a welcome opportunity for the Court to revisit this area. In my view, the discrimination at the University of Texas is inconsistent with the Court’s decision in Grutter, but at a minimum it has to be conceded that the discrimination there was not blessed by Grutter, in at least two key respects. First, the University of Texas used preferences, then stopped using them as a result of a court decision, and then reinstated the use of racial preferences after it had achieved just as much diversity as it previously had by adopting its Top Ten Percent Plan (which admits any Texas student who graduates in the top ten percent of his or her high-school class). Second, UT seeks to justify this ramped-up use of preferences by arguing that it wants to achieve, not just campuswide diversity, but classroom-by-classroom diversity. Indeed, the UT case suggests that the Grutter framework just isn’t working, and that the expiration date on it needs to be moved up.
The evidence that there are compelling “educational benefits” from racial and ethnic diversity is increasingly being called into question. In a 2007 decision striking down racial and ethnic preferences at the K–12 level, Chief Justice Roberts warned that the purported benefits of diversity there were “dispute[d]” and “intangible” while “the costs are undeniable.” The evidence that there are compelling benefits is also increasingly disputed in the higher-education context, as well. And even if there are benefits, they are at best marginal — that is, it is obvious that the benefits are not essential for education, and that they do not apply in all educational contexts (for example, there is no “black perspective” on astrophysics). It is hard to argue that achieving a predetermined racial and ethnic mix through the use of preferences is essential to running a successful university when, for starters, most universities are essentially nonselective — and, thus, do not weigh race and ethnicity in admissions.
What’s more, there are many selective schools that either don’t use, or for some period of time in recent years have not used, racial admission preferences — without the sky falling. For starters, of course, there is Texas itself, and the University of Georgia had to eschew preferences recently because of a court decision. Further, preferences have been ended in Arizona, California, Michigan, Nebraska, and Washington by ballot initiatives. Florida, Iowa, and — as of Jan. 1, 2012 — New Hampshire also do not use them. Add them all up, and around 40 percent of the population lives in states where public universities either are not using preferences, or recently have not used them.
Finally, the evidence is mounting that the costs of preferences are, indeed, “undeniable.” 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 — make clear that African American and Latino students are themselves among the casualties.
And that’s just one of the costs of using racial preferences. Others include: 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 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 problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools 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.
The Court needs to take the Fisher case.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity.