Obama Wants More Preferences

The Obama administration has weighed in on behalf of the University of Texas’s use of racial and ethnic preferences in its undergraduate admissions, filing an amicus brief in the U.S. Court of Appeals for the Fifth Circuit, as reported here. This is unfortunate if not surprising, but the scope of the brief is noteworthy in three respects.
First, it goes out of its way to endorse the use of preferences to achieve diversity not just in this particular case at this particular school, but in all “educational institutions”—K-12, undergraduate, and graduate. The Supreme Court has never found there to be a compelling interest in the former instance—nor, for example, in post-doctorates for chemistry—and it is aggressive and wrong to argue that, because the Court found there to be compelling educational benefits in diversity at the University of Michigan law school, therefore any educational institution can make that claim.
Second, the University of Texas is arguing not just for campus-wide diversity but for classroom-by-classroom diversity. To achieve this, needless to say, the use of racial and ethnic preferences will be increased significantly.
Third, the University of Texas had—through its use of the state’s Ten Percent Plan—already achieved significant diversity, prior to re-instituting racial and ethnic preferences. That was the purpose of the Plan (which allows any student graduating in the top ten percent of his or her high-school class to go to the flagship campus), and indeed the school’s president had bragged about its success in that regard. Now, the Supreme Court had ruled in the University of Michigan cases that one element of constitutional “narrow tailoring” is to give consideration to means other than overt preferences to achieving diversity—and here those means had not only been considered, but had been adopted and with success. How then can the use of preferences here be “narrowly tailored”?
One suspects that the Obama administration’s Justice Department will never meet a racial preference it doesn’t like. This case, meanwhile, is likely headed to the Supreme Court, whatever the Fifth Circuit does.
Postscript re other amici: The Chronicle of Education reports that the administration has company: “Fourteen national higher-education associations have filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Fifth Circuit to uphold the use of race-conscious admission policies by the University of Texas at Austin,” including “the American Council on Education, the American Association of Community Colleges, the Association of American Medical Colleges, and the National Association of Independent Colleges and Universities.” Our Center for Equal Opportunity, by the way, has—along with the National Association of Scholars and the American Civil Rights Institute—joined an amicus brief filed by the Pacific Legal Foundation opposing the admissions discrimination.

Roger Clegg

Roger Clegg is the President and General Counsel of the Center for Equal Opportunity.

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