Law & the Courts

It’s Time to End Racial Discrimination for Good

(Photo Illustration: NRO; Image: Vladek/Dreamstime)

What is it with the University of Texas and race-based admissions? The Supreme Court told them to knock it off way back in 1950 with its decision in Sweatt v. Painter. It repeated itself in 1996 by letting stand the Hopwood v. Texas decision, which forbade the use of racial criteria in admissions (and was partly reversed in 2003). Now the university’s race-based undergraduate-admissions policies are before the Supreme Court in Fisher v. University of Texas. Texas deserves to lose — again.

The case involves Abigail Fisher and Rachel Michalewicz, two white women who were denied admission to the University of Texas while nonwhite students with inferior grades and test scores were admitted. The University of Texas employs a peculiar admissions process as a result of earlier affirmative-action lawsuits: It automatically admits Texas high-school students who graduate in the top tenth of their class. As Justice Ruth Bader Ginsburg noted during Fisher arguments, this is a sanitized stand-in for race: Texas’s high schools, like those of most other places in these United States, are de facto segregated, a result of geography-based school assignments and segregated neighborhoods. Justice Ginsburg noted the perversity of that situation: The university’s diversity program relies upon the segregation of neighborhoods and creates serious disincentives for nonwhite students to seek education at schools that are (that curious criterion) diverse. The top–10 percent cohort accounts for about 75 percent of UT undergraduate admissions. At issue here is the remaining 25 percent, who are judged partly by race.

RELATED: Casting for Affirmative Action Votes in Fisher v. University of Texas (Fisher II)

The attorneys for the plaintiffs in Fisher are presenting this as a 14th Amendment equal-protection case, but it is in fact a much more straightforward statutory matter: The Civil Rights Act of 1964 in very plain language prohibits racial discrimination in admission to public colleges and universities (and, in fact, all colleges and universities that receive federal funds). The 14th Amendment, a product of Reconstruction, might very well be read in such a way as to permit racially conscious policymaking as an instrument of redress, but the Civil Rights Act is not so elastic. The language of the law does not allow for the use of racial discrimination as an instrument of social engineering, even if we were to imagine that that is a good idea.

#share#And, of course, it isn’t. The University of Texas has most often run into the issue of racial discrimination in its law school, which, according to the U.S. News rankings, is the 15th-most-prestigious institution of its kind in the nation, just behind Georgetown and just ahead of UCLA. There are many things that ail black America, but being obliged to attend law school at UCLA instead of the University of Texas is not one of them. The current question before the Court involves undergraduate admissions, and the fact that a black or Hispanic student who is a marginal candidate for the University of Texas might be remanded to a slightly less competitive institution — say, Syracuse, Clemson, or the University of Massachusetts at Amherst — is hardly a national emergency. Our policymaking elites tend to focus on elite obsessions, which is why we have Supreme Court cases about admissions practices at elite law schools while the high-school dropout rate for black men in Bill de Blasio’s New York is about half. There is an educational emergency in the United States, and it doesn’t have much to do with having to choose between UT and Fordham.

RELATED: U-T Austin’s Race-Conscious Policies

Affirmative action is a clumsy instrument, and even if using racial criteria were prudent (it isn’t), as practiced it is outmoded, to say the least. Black America is, as a result of immigration and organic social change, much more diverse than it was in 1963. The single most highly educated demographic group in the United States is Americans of Nigerian origin, who take undergraduate degrees at twice the white rate and masters’ degrees at slightly more than twice the white rate. For all the talk about “white privilege,” Malia and Sasha Obama, and millions of other children of high-achieving black families, enjoy resources and opportunities that are utterly alien to the rural poor of eastern Kentucky or interior California. Race is a powerful factor in American life, to be sure, but capitalism is much more powerful, which is why race is no longer a useful stand-in for economic condition or social status. The high-achieving black and Hispanic students who are credible candidates but not quite shoo-ins for elite universities are going to do just fine in life, and giving them a slight nudge is not worth abandoning the ideal of race-neutral public institutions and thereby codifying racial collectivism.

#related#The University of Texas has, over the years, shown itself to be fairly squirrelly on the matter of racial preferences, sneaking them in through the back door when the front door is closed by the courts. We hope that the Supreme Court takes this opportunity to communicate in maximally clear terms that the law of the land requires us to judge college applicants not by the color of their skin but by the content of their report cards and SAT scores. We also hope that if this produces outcomes that make our policy-making elites uncomfortable, then they will turn their attention to the actual crisis in American education. That crisis isn’t happening on the Longhorns’ campus in Austin, but you can see it from there.

Editor’s Note: The above has been amended since its initial publication.


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