The Corner

Re: Fifty Years of Affirmative Action is Enough

Earlier this week, the Fifth Circuit issued a decision, Fisher v. University of Texas, that may partially grant Roger Clegg’s wish that affirmative action come to an end.

The court in Fisher upheld UT’s race-conscious admissions program (governing those applicants not in the top ten percent of their respective high school classes).  In doing so the court relied on the Supreme Court’s decision in Grutter v. Bollinger, upholding the use of race as a flexible “plus” factor in elite college admissions.

Fisher presents the Roberts Court with an opportunity to revisit the constitutionality of the use of race in college admissions. Given the present composition of the court, there’s a fair likelihood that racially conscious programs won’t pass strict scrutiny muster (i.e., that the use of race in admissions serves a compelling state interest and is narrowly tailored to serve that interest).

Chief Justice Roberts and Justice Alito signaled in the dual 2007 grade-school-assignment cases (Seattle and Louisville) that “diversity” isn’t a compelling state interest. But even if the Court doesn’t address whether diversity on college campuses is a compelling state interest, the Court should still strike down the UT program. That’s because Grutter prohibits colleges and universities from using race or ethnicity as a predominant or decisive factor in admissions. The evidence is irrefutable that if race/ethnicity were not a decisive factor in admission, fewer blacks, Hispanics, and Native Americans would meet the admissions thresholds of most elite colleges. An analysis by the Center for Equal Opportunity shows, e.g., that at some schools blacks are preferred over similarly situated white comparatives by a factor approaching 700 to 1. That’s not a mere “plus.” That can’t survive even Grutter.

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

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