The Corner

The Arizona Law and Racial Discrimination

Linda Chavez correctly notes that the Arizona law states that the state “may not solely consider race, color or national origin in implementing the requirements of this subsection” (emphasis added ). She also notes, correctly, that this does not prohibit the state from using race, etc. as a factor in implementing the subsection.

 Linda then makes reference to the Center for Equal Opportunity’s splendid studies regarding the use of racial preferences in college admissions to argue that whenever race is used by the state as one factor among many to achieve an objective, race becomes the deciding factor. Linda maintains that “[w]e conservatives can’t have it both ways; either we’re for race neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.”

Just a few points: The CEO studies clearly demonstrate that race is the deciding factor in college admissions preference programs. At some schools, a black applicant is more than 200 times as likely to be admitted than a similarly situated white comparative. But racial preferences in college admissions are designed specifically to get a “critical mass” of certain minorities into the classroom. In contrast, the Arizona law isn’t designed to get a “critical mass” of minorities out of Arizona. Illegal status, not race or ethnicity, is the deciding factor under the Arizona statute.

Second, being opposed to racial preferences in college admissions but supportive of the Arizona law is not “having it both ways.” The Arizona statute specifically states that race may be considered “to the extent permitted by the United States or Arizona constitutions.” That means that the consideration of race or ethnicity must be narrowly tailored —  i.e., truly only one factor among many — in achieving the compelling governmental interest of confirming an individual’s lawful presence within the state’s borders. (There’s no evidence that once the statute becomes operational, race will be the sole factor used by cops in implementing the law). On the other hand, CEO’s own statistics demonstrate that college admissions programs are not in compliance with the U.S. Constitution under the Supreme Court’s holding in Gratz v. Bollinger.

Third, it’s highly debatable that the use of race in college admissions “helps minorities.” Studies by Prof. Richard Sanders show that the mismatch effect of racial preferences results in higher percentages of preferred minorities getting poor grades, flunking out of school, and flunking the bar exam than would be the case if such students had attended schools that hadn’t admitted them on the basis of preferences.

Obversely, it’s debatable whether the Arizona law “harms minorities” qua minorities. Insuring lawful presence within the state affects illegal immigrants, whether they’re in the minority or majority. That the law may have a disparate impact on certain groups does not, without evidence of invidious intent, subject supporters of the measure to “legitimate criticism as to our motives.”

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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