Bench Memos

The NYT Keeps Up Its Fisher Push

The New York Times continues to try to influence the Supreme Court’s decision in Fisher v. University of Texas, with another front-page, above-the-fold story today. The gist of it is that some universities have done a better job than others in moving from racial preferences to socioeconomic preferences, because the students admitted under the latter approach are more likely to need financial help and some schools are reluctant to foot that bill. One senses that this is supposed to warn the Court away from assuming that getting rid of racial preferences will result in a shift to socioeconomic preferences, but if so, I think the Times story may backfire. It seems to me there are three takeaways from what the Times says, and all three cut in the anti-affirmative-action direction.

First, it suggests that the students who are admitted under the current racial-preferences system are not socioeconomically disadvantaged. That is, the black and Latino students getting preferences are not from tough neighborhoods, but from backgrounds indistinguishable from most of the white and Asian students admitted. This is not helpful to the race-preference apologists, and it is also not news, by the way:  The pro-preference book The Shape of the River acknowledged that 86 percent of the African-American students admitted to the selective schools studied there came from high- or middle-income groups (and thus only 14 percent from low-socioeconomic-status backgrounds).

Second, also implicit in the Times story is that, for schools to make any movement at all toward looking for diamonds in the rough of all colors — rather than using race as a proxy for diversity of background — they need a strong shove. That is, they need to be told to stop engaging in racial discrimination.  Some schools may do a better job in making the transition than others, but the shove is apparently needed for them all.

Third, since when would the Court allow racial discrimination because it is cheaper than being nondiscriminatory? The Times seems to think that it is perfectly fine for schools to argue, “Look, we feel better about ourselves when we can say we have diversity in our student body. Now, we know that what we’re supposed to be after is actual background diversity, but the trouble is that it’s just too darn expensive. So we’d like to admit students based on their skin color instead.” If a company said using skin color was a cheaper way to sort applicants than actually determining their educational qualifications on a case-by-case basis, a judge would be quite dismissive, and rightly so.


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