I accepted some warm invitations from the Federalist Society chapters at law schools in the
chilly Midwest and spoke last week at Indiana University, Notre Dame, and the
University of Michigan about Fisher v.
University of Texas, the case before the Supreme Court challenging the use
of racial preferences in university admissions.
Here’s an edited version of what I said.
Abigail Fisher is a young woman who grew up in a Houston
suburb and always wanted to go to the University of Texas. So, when she was in high school, she applied
there, but she did not get in. The
University of Texas admits that it considers skin color in deciding who gets
admitted; and if your ethnicity is thought to be “underrepresented” at UT (that
is, if you are black or Latino), it helps you get in, but if you are thought to
be “overrepresented” (that is, if you are white or Asian), then your skin color
hurts you. So Abigail Fisher, who is
Should she win?
Well, as a good conservative, I think the answer should depend on what
the law says, rather than what some judge thinks is a good policy, and the most
obvious law to look at is Title VI of the 1964 Civil Rights Act. It reads:
“No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving
Federal financial assistance.” Now, UT
receives lots of “federal financial assistance,” and Abigail Fisher clearly was
“subjected to discrimination,” and it was “on the ground of race, color, or
national origin,” so the answer in a just world is that she should win her
Interesting Twist in Texas
Alas, a five-justice majority of the Supreme Court ruled
in the 1978 Bakke case that Title VI
doesn’t mean what it says – that Congress didn’t intend to make racial
discrimination illegal any more broadly than the Fourteenth Amendment makes
it. And that means that, while racial
discrimination is almost always illegal, it isn’t if it is undertaken pursuant
to a “compelling interest,” and if the discrimination is “narrowly tailored” to
achieving that interest. What’s more, a
majority of the Court ruled later in the 2003 Grutter case that the “educational benefits” from having racial and
ethnic “diversity” in the student body are a compelling interest that can
justify such discrimination.
Well, then, how can Abigail Fisher hope to win? The answer is that the situation in Texas has
an interesting twist. A federal court of
appeals ruled in the 1990s – prior to the Supreme Court’s later Grutter decision – that “diversity” was not a “compelling” interest, so UT could
not use racial preferences. In response,
the Texas legislature – which wanted to ensure continued racial diversity
anyhow – passed the Top Ten Percent law, which says that any student graduating
in the top ten percent of his or her class at a Texas public high school is
automatically eligible to go to UT.
Because of the demographics of Texas public high schools, many of which
are heavily black or Latino, this guaranteed plenty of racial diversity at UT
Now, remember that in its 2003 Grutter decision the Supreme Court said that, while diversity is a
compelling interest, the use of racial preferences had to be “narrowly
tailored” to achieving that diversity.
And, the Court said, one element of narrow tailoring is that diversity
can’t be easily achievable except by the use of outright racial preferences.
Down on the Ten Percent Rule
So, say Abigail Fisher’s lawyers, that means that UT
loses, because UT was bragging about how, by adopting the Top Ten Percent plan,
it had achieved as much racial diversity without
using outright racial preferences as it had had beforehand, when it was using racial preferences. It had no justification for announcing, on
the day the Grutter decision came
down, that now it was going to reinstate racial preferences on top of the Top
Ten Percent plan.
UT’s response is that it wants to have even more
diversity than it used to have, for two reasons. First, it wants to have not only campus-wide
diversity, but also more diversity on a classroom-by-classroom basis. Second, the general population of the state
of Texas is getting more diverse, so UT says it is entitled make its student
body more diverse, too.
The Supreme Court may well decide the case simply on the
basis of which side has the better of these “narrow-tailoring” arguments, but
the Center for Equal Opportunity and a lot of other folks are arguing that the
Supreme Court should take this opportunity to reconsider its 2003 Grutter decision – and rule that
“diversity” is not a “compelling” interest in the first place, and that
therefore no university should be using racial preferences anymore.
When you think about it, the argument
that there are compelling “educational benefits” from a diverse student body
just doesn’t hold up. The claim is that
black and Latino students will say something in interracial conversations, in
or out of the classroom, that are so insightful and profound and so unlikely to
be heard or learned in any other way that they justify racial discrimination to
make sure those conversations take place.
And it must be also that admission officials can predict that the
observations will be made, and that they can predict that they are much more
likely to be made by students who have one skin color rather than another skin
color. (More here
on interracial conversations as “educational benefits.”)
Now, all that seems very farfetched to me. But let’s suppose that maybe there is
something to it, that it is at least somewhat more likely that maybe something
very important is going to be learned at least sometimes as a result of using
racial discrimination in admissions.
Even if we assume this to be the case, we have to ask
another very important question: Is the benefit to these interracial
conversations worth the costs that
are inherent to the racial discrimination used to achieve the purported
benefit? The costs, after all, are many
and much more undeniable than any benefit.
Here’s a list of the costs of using racial preferences in
university admissions: It is personally unfair, passes over better qualified
students, and sets a disturbing legal, political, and moral precedent in
allowing racial discrimination; it creates resentment; it stigmatizes the
so-called beneficiaries in the eyes of their classmates, teachers, and themselves,
as well as future employers, clients, and patients; it mismatches African
Americans and Latinos with institutions, setting them up for failure (consider,
in particular, the evidence marshaled in the recent book Mismatch by Richard Sander and Stuart Taylor); it fosters a victim
mindset, removes the incentive for academic excellence, and encourages
separatism; it compromises the academic mission of the university and lowers
the overall academic quality of the student body; it creates pressure to
discriminate in grading and graduation; it breeds hypocrisy within the school
and encourages a scofflaw attitude among college officials; it papers over the
real social problem of why so many African Americans and Latinos are
academically uncompetitive; and it gets states and schools involved in unsavory
activities like deciding which racial and ethnic minorities will be favored and
which ones not, and how much blood is needed to establish group membership – an
untenable legal regime as America becomes an increasingly multiracial,
multiethnic society and as individual Americans are themselves more and more
likely to be multiracial and multiethnic (starting with our president).
It’s not a close question: The costs overwhelm any possible benefit, so
there is no “compelling” reason to engage in discrimination, and so the Supreme
Court should rule that racial preferences should not be used in university