Over at The Volokh Conspiracy, Ilya Somin has posted a critique of my Minding The Campus commentary worrying that the Supreme Court’s decision in Fisher v. University of Texas could have the paradoxical effect of entrenching racial preferences for decades.
Ilya makes reasonable points, and he may turn out to be right. I respectfully disagree, as explained below, with his contention that I was “off base” in saying that it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences.
I hope that Ilya will turn out to be right in predicting that substantial numbers of rejected students will file reverse discrimination lawsuits, a sine qua non for strict judicial scrutiny of universities’ rampant abuse of racial preferences.
Indeed, the hope for a good supply of such lawsuits was the premise on which I wrote my more optimistic piece on the Fisher decision, for USA Today.
There I suggested that Fisher may open the way for a healthy shift in the debate from legal abstractions to the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity.
As for “off base”: Ilya does not deny the factual accuracy of my statement that rejected students’ inability to know whether they would have been admitted but for racial preferences may be a major deterrent to reverse-discrimination lawsuits. Rather, he disputes my suggestion that this may be a major deterrent to suing.
In fact, it has already proved to be a strong deterrent. The proof is that during the more than 45 years since racial preferences in admissions got started, only five reverse-discrimination lawsuits (the first of which was dismissed as moot) have gotten to the Supreme Court. And very few have prevailed in lower federal courts.
Among the reasons for this paucity is the fact that neither Abigail Fisher nor any future plaintiff can ultimately win a remedy unless the courts end up deciding after years of litigation that she would have been admitted had race not been considered — an issue about which the rejected applicant has far less information than the university does.
It’s true that a reverse-discrimination plaintiff has standing to sue if his race was counted against him by the admissions office, even if he cannot ultimately prove he would have been admitted but for race. But I did not suggest otherwise.
Other deterrents to suing are the unlikelihood of a substantial damage award; the negative publicity, vilification, and invasions of privacy to which any such plaintiffs are likely to be subjected; and the fact that any decision requiring the defendant university to admit the plaintiff would almost certainly come after she — like Abigail Fisher — has already graduated from some other college.
One more thing: At the age of 76, Justice Anthony Kennedy has just passed up what may well be his last chance to cast the fifth vote greatly to curtail, if not to abolish, racial preferences in state university admissions.
How likely does it seem at this point that Kennedy, or his successor, will ever pull the trigger?