Tag Archives: Supreme Court

The Fisher Decision: Not Good News, But…

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions.  The vote was 4-3, with Justice Kennedy writing the majority opinion, joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused).  Justice Alito write a powerful, 51-page dissent, which he read from the bench.

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains.  But the silver lining is that today’s decision is a narrow one.

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race.  Race is, the Court says, only a “factor of a factor of a factor” at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through.

So look at it this way:  Barring a decision by the Court that overruled Grutter v. Bollinger and said that schools may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of schools would continue to use such preferences, even if the Court had left the door open only a tiny crack.  If the Court had said, “You can use racial preferences only if the school can prove XYZ,” then every Ivy League president would swear that, what do you know, we have found XYZ.”  And it doesn’t matter what XYZ is.

That’s what the law was before today’s decision, and it remains what the law is after today’s decision.  Sure, it would have been better if the Court had given the opponents of racial preferences more ammunition than it did today to attack those XYZ claims, but we still have plenty of ammunition from the Court’s earlier decisions.

The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other schools, and at UT itself for that matter.  It’s interesting that in the run-up to the decision, there was much discussion even among liberals that maybe indeed there are better approaches to student admissions that UT’s.  Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s hoops have been jumped through.

So the challenges to racial preferences will continue; cases already filed against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed.  And the Supreme Court has also made clear that states are free to act on their own to ban racial preferences, through ballot initiatives or legislation.  The struggle goes on.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of plaintiff over the course of the Fisher litigation.

Fulbright Pushes Diversity Courts Don’t Allow

The Chronicle of Higher Education reports that “Fulbright Seeks More Diverse Pool of Scholars and Students.” What it doesn’t report is why.

Fulbright, of course, does not really want a more diverse “pool.” What it wants is more minorities (presumably not including Asians) actually awarded grants. But the only reason given for its efforts to select more minorities is that awarding more Fulbrights to minorities … is good for the minorities who receive them.

“We want to send the message to all students and scholars that Fulbright encourages your interest, and that we’re committed to promoting diversity in the program for the long term,” Mala Adiga, the department’s deputy assistant secretary for academic programs, said in a statement to The Chronicle. “We believe that individuals from a wide range of backgrounds, who have the talent and commitment to succeed, should have an opportunity to expand their knowledge of the world as Fulbrighters.”

Of course they should, and no one can doubt that having the U.S. Department of State’s Bureau of Educational and Cultural Affairs, which administers the Fulbright program, provide an all expense-paid sojourn overseas is no doubt nice for the recipients.

Moreover, one can understand the concerns of Kimberly Jackson, an associate professor of chemistry and biochemistry at Spelman College, who received “one of the U.S. government’s prestigious Fulbright research awards.” Professor Jackson, who is black, The Chronicle tells us,

wanted to make sure that she and her three children would have a positive experience. But during a Fulbright mixer before her departure, she says, she didn’t find a fellow Fulbright scholar who “looked like her,” and she didn’t meet anyone who could relate to her concerns.

What The Chronicle does not tell us, however, is exactly why the U.S. Department of State should make (or even be allowed to make) special efforts to ensure that some applicants, based on their race or ethnicity, “have an opportunity to expand their knowledge of the world.”

Diversity-justified special efforts to increase the numbers of minorities, in short, presumably require more than providing Professor Jackson and other African Americans with the pleasure of finding more people at Fulbright mixers who “looked like her” and could relate to her concerns. Insofar as “diversity” justifies preferential treatment based on race, for example, it is because whites (and presumably Asians) need to be exposed to people who are “different” from themselves.

To whom are those given Fulbright grants supposed to provide “diversity,” especially since Prof. Jeanne Maddox Toungara, a historian at Howard who received a Fulbright to study in West Africa, observed, officials from other countries that help fund the Fulbright program “may not be as committed to ‘multicultural representation’” as the United States.

Indeed, minority “representation” seems to be the Fulbright program’s overriding concern. According to The Chronicle,

In the student program, the number of black grantees rose from 33 in 2005-6, or less than 3 percent, to 99 in 2015-16, or 5.2 percent of the almost 1,900 grantees. But the program’s student participants remained mostly white, at nearly 63 percent, and black and Latino students remain underrepresented in the program, compared with their share of the U.S. undergraduate population.

In the scholar program, 66.4 percent of the 768 award winners in 2015-16 were white. The percentage of black and Latino recipients, at 7 percent and almost 6 percent, respectively, roughly matches the representation of those groups as faculty members at American colleges, according to data from the U.S. Education Department.

What those numbers conspicuously fail to reveal, however, is what percentage of white, black, and Hispanic applicants were accepted.

More important, in the absence of any compelling rationale for increasing the “diversity” of those awarded Fulbright grants, this fixation on representation appears to be a perfect example of the “diversity for its own sake” that has been rejected time and again by the Supreme Court.

Perhaps it is time to stop what Justice Thomas has declared, quoting Grutter, quoting Bakke, is a “nonstarter.” (“Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible ‘racial balancing.’”)

Will the Supreme Court Stop Racial Preferences?

Today the Supreme Court hears arguments in round two of Fisher v. Texas.

Abigail Fisher, you will recall, claimed (and still claims) that the University of Texas’s admission preferences for blacks and Hispanics amounted to racial discrimination against her because she is white. In round one the Supremes almost agreed but instead vacated and remanded the case to the Fifth Circuit to determine if it was really, really necessary for UT to discriminate against Ms. Fisher in order to perform its educational mission. The Fifth Circuit sided with the University again, and the Supreme Court will now consider the matter a second time.

Related: Fisher II–A Mystery Solved

In “Race & Admissions: Round 2 at Supreme Court” a week ago, the National Law Journal briefly summarized the case and presented representative excerpts from three amicus briefs supporting Ms. Fisher and three supporting UT’s race preference policy. The latter three — presenting the views of the military, large corporations, and elite universities, what an earlier generation would have called “The Establishment” — deserve a close look. Following are excerpts their arguments and my comments.

Thirty-six former military leaders: Uni­versity admissions policies, including those at the University of Texas at Austin, determine the makeup of our officer corps. As was true when Grutter was decided, our military cannot achieve a racially diverse officer corps if universities are required to turn a blind eye toward race.

Translation: If universities are forced to treat all applicants equally, without regard to their race, i.e., “turn a blind eye toward race,” the military will find it much more difficult to discriminate based on race in selecting and promoting our officers. It would be required, in short, to limit its evaluation criteria to non-racial qualifications such as merit and leadership ability.

Fortune 100 companies: For amici to succeed in their businesses, they must be able to hire highly trained employees of all races, religions, cultures, and economic backgrounds…. [The following sentence is from the brief but was not quoted by the National Law Journal.] Amici are dedicated to promoting diversity as an integral part of their business, culture, and planning. But amici cannot reach that goal on their own.

Translation: It’s easier for us to discriminate in hiring if universities have discriminated in admissions. (See the military argument, above.) The Supreme Court has, unfortunately, allowed higher education institutions to engage in racial discrimination to promote “diversity” under certain theoretically strict conditions, and they are required to demonstrate that “diversity” is in fact critically important for their academic mission. That license (and corresponding requirement), however, has never been extended to corporations.

Related: 25 Years on the AA Firing

The corporate brief also engages in hyperbole, as when it asserts, “It also is critical to amici that all of their university-trained employees have had the opportunity to share ideas, experiences, viewpoints, and approaches with a broadly diverse student body.” (Emphasis in original) Really? All university-trained employees? If true, that would mean these diversity-addicted corporations refuse to hire graduates of the sixty or so all-women colleges in the United States.

University of Michigan: Despite persistent and varied efforts to increase student-body racial and ethnic diversity by race-neutral means; despite committed efforts by University faculty, staff, students, and alumni to conduct race-neutral recruiting and admissions programs; and despite admissions consideration and extensive financial aid for socioeconomically disadvantaged students, admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges since Proposal 2 [banning affirmative action in the state] was enacted.

Translation: The amount of ‘diversity” we formerly enjoyed, and wish we could continue requires deep and extensive preferences based on race, not simply a “plus factor” in close cases. Indeed it does; the degree of decline in minority admissions after the prohibition of racial preference is in fact the best measure of the magnitude of the preferences that had previously been awarded.

The University of Michigan brief trumpets the fact that “In 2006—the last admissions year before Proposal 2 took effect—… Black undergraduate enrollment was 7.03% …; for the past five years it has ranged between 4.41% and 4.71%.” Aside from whether or not this is a “precipitous” decline and whether or not it should justify preferential treatment of black applicants, the demographics of the UM population are considerably more complex, and even confusing, than the brief’s cherry-picked numbers suggest.

In 2006, for example, the supposed high-water mark of “diversity,” according to the University of Michigan’s Office of the Registrar Ethnicity Report, 59.7% of the total enrollment was white and 12.1% was Asian. According to the 2015 Report, however, after nine years of allegedly “precipitously” declining enrollment of underrepresented minorities, whites were only 56.2% and Asians 11.2% of total enrollment. Go figure.

Related: The Sixth Circuit Undermines AA

There is no mention, of course, in any of these briefs of the rise or fall of the numbers of Jews, Muslims, Evangelical Christians, or other minorities who presumably also can contribute to “diversity.”

The Supreme Court’s begrudging and half-hearted legitimization of racial preferences from Bakke through Grutter to Fisher has contributed enormously to a vast state-sponsored racial spoils system and hence increased racial divisiveness. In Fisher II, the court has the opportunity to undo some of this damage.

Fisher II: A Mystery Solved While Asians Get Their Voice

Many legal experts were surprised in June of 2013 when the U.S Supreme Court handed down its long-awaited decision in the University of Texas affirmative action case, Fisher v. Texas. The mere fact that the Court had taken up the case when it could easily have declared it moot indicated to many that at least five Justices were prepared to restrict dramatically the degree to which public institutions could use racial classifications to further what they deemed “compelling” pedagogical  interests.

(The mootness option was readily available to the Court because Abigail Fisher, the plaintiff who claimed to have been the victim of racial discrimination in the admission to UT’s undergraduate program, had already enrolled in another university and would graduate before the case was decided, thus rendering her ineligible for UT undergraduate admission even with a favorable Court ruling).

Related: the Disappointing Non-Decision in Fisher

Virtually all assumed that the Court would be modifying, if not entirely overruling, the 2003 case of Grutter v. Bolllinger, which gave to state institutions great leeway in determining both the nature of the educational interest they believed justified race-conscious admissions, and the means appropriate to furthering that interest. And it was universally assumed that it would be a 5-3 or 4-4 decision with Anthony Kennedy the key swing vote (Elena Kagan had recused herself because of prior involvement in the case as Solicitor General).

It was a mystery then when the decision came down — supported by an unlikely 7-1 majority — reaffirming Grutter as operative law and merely remanding the case to the appeals court with instruction that it not defer so readily to UT’s claim that its race-based “holistic” program was narrowly tailored to achieving its diversity goal.  The University’s judgment about the compelling importance of racial diversity was not challenged, but the burden of proof was shifted to UT to show that no practicable alternative existed to achieve the racial diversity it sought that did not use overt racial classifications.  “Show us there’s no race-neutral way to achieve the racial diversity you want,” the court said in effect, “and if you do, all is OK as far as the Constitution is concerned.”  That seven Justices could a3gree on this formula suggested just how moderate the decision was and how little of a threat it posed to the pro-affirmative action Grutter decision so eagerly embraced by the nation’s leading universities and professional schools.

On remand, the appeals court voted, in a 2-1 decision, to accept UT’s claim that its holistic plan, which accorded admissions boosts to “underrepresented minorities,” was indeed narrowly tailored and fit tightly with the diversity-enhancement goal it was intended to achieve. While there was a sharp dissent by judge Emilio Garza, who argued that the university had not clearly defined or explained exactly what it meant by its main goal of enrolling a “critical mass” of minority students, some knowledgeable observers thought the case was now settled and that on the affirmative action front in higher education business would go on as usual.

Related: The ‘Mismatch’ Thesis and Fisher

But attorneys for Fisher appealed the decision to the U.S. Supreme Court, which in a second mystery move decided to accept the case (grant certiorari as the lawyers say).  What was going on here?  Were the four Justices needed to grant cert. for a second round of Fisher proceedings primarily concerned with reigning in to some degree what some saw as an overly permissive interpretation of a university’s obligation to seek non-racial means to enhance racial diversity?  Or were those who granted cert. hoping for a five-vote majority to reign in Grutter more substantially — or even overrule it and return to the idea of color-blind justice that had so motivated civil rights advocates through the first two-thirds of the last century? Something seemed to be going on here that even sophisticated court watchers found baffling.  What were the conservative justices, who must have been the ones to vote to hear Abigail Fisher’s appeal for the second time, really up to?

A Mystery Solved

The mystery may have been solved by legal journalist Joan Biskupic, who in researching a book on Justice Sonia Sotomayor learned that when Fisher I was first taken up by the Court, Anthony Kennedy and the four conservative Justices were all on board for a major revision or overruling of Grutter.  Racial preference policies were to be subject to real “strict scrutiny,” and the “diversity-enhancement” rationale itself might possibly have been called into question as a truly “compelling state interest” that can override the color-blind interpretation of the 14th Amendment’s Equal Protection Clause.

Biskupic’s sources claimed Anthony Kennedy was preparing a draft for a clear retreat from Grutter, but he was persuaded to change his mind by Justice Breyer who explained the extreme opposition to such a move by Justice Sotomayor, the court’s first Latino Justice. Sotomayor was preparing a sharply worded draft accusing the anti-affirmative action Justices of insensitivity on racial matters, and the effect of such a clash of opinions, Breyer told Kennedy, would have polarizing consequences both inside and outside the Court.

Justice Breyer Steps in

Breyer was apparently able to convince both Anthony Kennedy and Chief Justice John Roberts to forego any dramatic change in the Grutter framework substituting instead what seemed like a minor alteration in the obligation of universities to justify more rigorously their race-conscious recruitment methods.  Any major change in Grutter would have to await another day.

The result of the shift was to bring on board both Breyer and Sotomayor in the first Fisher ruling(Ruth Bader Ginsburg was the lone dissenter, who believed that UT had already done more than enough to justify its race-conscious programs). And from the standpoint of those Justices who would have liked a more substantial move away from Grutter, the incremental move was seen as one small step in a process that might include more radical changes in the future.

Sotomayor’s Rhetoric

Two important things changed from the time Fisher Iwas decided to the Court’s more recent decision to hear Abigail Fisher’s appeal for a second time. First, Justice Sotomayor issued a blistering dissent in the 2014 case of Schuette v. BAMN, a case on the constitutionality of Michigan’s ban on race-based affirmative action programs in state institutions.  Her opinion contained some of the kind of impassioned rhetoric — accusing the Court majority of insensitivity to racial discrimination and injustice — that allegedly was contained in her original, preliminary draft of a Fisher dissent.

Nothing particularly polarizing came of Sotomayor’s Schuette dissent, however, which some saw as out of place in the case at hand and not particularly resonant with either general public opinion in America or the opinion of the Court’s centrists. The polarization issue seemed neutralized, and one suspects that not only the three right-most Justices were more emboldened to revisit the Fisher case — i.e. Scalia, Thomas, and Alito — but very likely both Anthony Kennedy and the Chief Justice John Roberts.

Kennedy and Roberts Less Constrained

The second thing that changed from 2013 were the two dramatic victories for the Left handed down by the Court in 2015 in the gay marriage case (Obergefell v. Hodges) and the case interpreting Congress’s intention regarding the Obamacare law (King v. Burwell). John Roberts issued the majority opinion in the Obamacare case, while Justice Kennedy wrote the majority opinion in the gay marriage case. The Kennedy and Roberts performance in these cases were seen as a great betrayal by many political conservatives, but were warmly greeted by the Left and seen as an indication of the flexibility, fairness, and centrist leanings of both Kennedy and Roberts. The cases established for both Justices a certain level of respect from the left-leaning law school elite, whose opinions historically have often counted a great deal in the minds of the swing Justices and centrists on the Court.

Kennedy and Roberts almost certainly feel less constrained today to speak their minds on race-based preferences in academia than they did in 2013 before Obergefell and Burwell enhanced their bona fides (or at least diminished hostility towards them) on the part of the myriads of left-of-center court watchers and legal commentators. Any decision they might write today overruling Grutter or narrowing substantially the permissible range of racial preference policies is likely to encounter much less hostility and produce much less polarization than might have been the case even a year ago or when Fisher I was decided. This of course is a source of great encouragement for those of us who hope that the Court will overturn Grutter and reaffirm the simple truth that state institutions are not permitted to favor or disfavor people on the basis of their race, ethnicity, or religion.

Asians Get in the Game

There is a third factor that may come into play in Fisher II that I have written about in an earlier Minding-the-Campus article — the rise of an aggressive Asian legal challenge to racial preferences in college admissions.  No longer quiescent or content to play simply the non-complaining “model minority” role, many Asian-American groups in recent years have come together and taken a page from the history of the NAACP to pursue an aggressive litigation strategy challenging racial preferences on 14th Amendment grounds. This strategy is clearly on display in Fisher II with an outstanding legal brief filed by two Asian-American groups, the Asian American Legal Foundation and the Asian American Coalition for Education, the latter an umbrella group representing 117 separate Asian-American organizations.

The AALF/AACE brief urges the Supreme Court not merely to modify Grutter‘s diversity-enhancement justification for racial preferences, but to overrule Grutter entirely and abandon “diversity” as a legitimate criterion for discriminating based on race. The brief is a model of legal craftsmanship, informed scholarship, and moral punch that announces to the Justices — loud and clear — that Asians will no longer take the widespread discrimination against them with indifference or passivity. The Asians are not going to keep quiet anymore when the universities establish the same kind of ceiling quotas against them that they imposed on the Jews in an earlier period of American history.

Related: Is Affirmative Action Micro-aggressive?

The constitutional question at hand, the brief began, is “whether Grutter v. Bollinger (2003), which upheld the use of racial preferences in higher education admissions for the non-remedial, and amorphous purpose of ‘diversity,’ should be overruled as fundamentally incompatible with the Equal Protection Clause of the Fourteenth Amendment and the equality principle of the Declaration of Independence?” The AALF/AACE brief answers this question with a resounding “yes” and backs up its claim not only with a reaffirmation of the color-blind interpretation of the Equal Protection Clause, but with extensive references to how Asian Americans have so often been victims of discrimination when this principle was ignored.

“Asian Americans, a minority group repeatedly victimized by discrimination, are the group most harmed by the University of Texas admission program,” the brief begins.  It continues: “UT’s use of race deprives Asian Americans of the right to be judged as individuals and not by the color of their skin.”  “For much of America’s history, race-based governmental programs have been used to oppress Asian Americans.”  “Today, supposedly benign racial balancing and diversity policies insidiously discriminate against Asian American students nationwide.” “[The Court] should re-establish the bright-line rule reserving use of race for remedial settings.”

The brief ends with two concluding sentences that cut to the quick: “For the foregoing reasons, the Court should find the UT admission program to be unconstitutional.  This Court should also revisit its holding in Grutter, to make clear that outside of a constitutionally-permissible remedy to prior discrimination, race may not be considered in college admissions.”

Asian Americans have come of age.  In the beginning of October of this year the London-based Economist ran an article titled “Asians Americans: The Model Minority is Losing Patience.”  Below the title, in a summary sentence, the article explains:  “Asian-Americans are the United States’ most successful minority, but they are complaining ever more vigorously about discrimination, especially in academia.” As the Economist writers report, after decades of relative quiescence, Asian Americans have found their voice of protest.  Like the Blacks and the Jews before them, they are no longer willing to accept in silence the overt discrimination against them. In the long history of American protest going back to the time of the American Revolution they are proclaiming to the world “Don’t Tread on Me!”

Whether this new assertiveness will have any effect on the outcome of Fisher II is impossible to say, but it just might provide the added push needed for five members of the U.S. Supreme Court to reinstitute the noble principle of color-blind justice so magnificently articulated by the elder Justice Harlan in the Plessy case.  The oral argument in Fisher II, scheduled for the end of this year, is going to be something to follow closely.

Why Size Matters in College Preferences


By Stuart Taylor, Jr. and Richard Sander

Even for people who approve in
principle of some use of racial preferences in university admissions — notably
including Justice Anthony Kennedy — the size of the preferences, and of the
resulting racial gaps in academic performance in college and beyond, should
matter a great deal.

So it’s unfortunate (though
understandable, as explained below) that the size of the preferences at issue
in Fisher v. University of Texas was
not mentioned either during the Supreme Court’s October 10 oral argument or at
any other point in the discrimination lawsuit against UT by Abigail Fisher, a
disappointed white applicant.

But the Court could and should use
Fisher case to impose a
requirement — suggested in our new book,
— that from now on, a university’s burden of proving justification for its use
of racial preferences will include a requirement that it fully disclose the
size of its preferences (preferably including legacy and athletic preferences)
and of the mean gaps in college academic performance among students admitted on
the basis of preferences of various sizes.

Continue reading Why Size Matters in College Preferences

We Don’t Need a Different “Affirmative Action”

the day the Supreme Court heard oral arguments in Fisher v. Texas, a case challenging racial preferences in college
admissions, the Wall Street Journal published a piece purporting to give “A
Liberal Critique of Racial Preferences.”

Richard Kahlenberg argued (as he almost always does) in favor of changing “affirmative
action” to a system based on socio-economic class. That is, rather than
colleges giving preference to students because of their ancestry, they would
instead give preferences to students from relatively poor families. Kahlenberg
thinks it better to selectively admit some applicants, no matter what their
race, from low-income and working-class families than to admit some from
affluent families on account of their race.

case for preferences based on socio-economic status (SES) is no better than
that for race. I will focus on the most central one: It accomplishes no good.

argument is that racial preferences made sense in the past, when doors were closed
to many Americans based on their skin color, but today “obstacles to
opportunity are more closely associated with economic disadvantage.”

strongly disagree. Today the “obstacles to opportunity” are overwhelmingly
creations of government: occupational licensure, minimum wage laws, red tape
that impedes business formation, and so on. Those obstacles affect everyone,
although they have their strongest impact on the poor. But being poor is not itself
an obstacle.

this is besides the point. Kahlenberg isn’t describing a generic plan to boost
up the poor and working-class. He wants elite colleges and universities to give
prefer to the children of poor and working-class families. Suppose that a
plumber’s daughter in North Carolina has grades and SAT scores that make her an
automatic admit at UNC-Charlotte and a fairly likely admit at NC State. She applies
to Duke on a whim and is accepted not for her academic prowess but Duke’s desire
for SES diversity.

a diligent student, she will succeed whether she goes to UNCC, NC State, or
Duke, although at the latter she might find herself competing with students who
have more academic ability. Even if going to Duke wouldn’t cost her more (and
it almost certainly will), how is it beneficial for her to go there? Her career
prospects depend on her own accomplishments, not the name of her alma mater.

are two hidden assumptions in Kahlenberg’s argument — that elite schools give
students elite education and that America will be a fairer country if children
from “lower” SES backgrounds attend elite schools. Neither assumption is correct.
The supposedly elite schools don’t necessarily provide a better education.
Moreover, shuffling a few students “up” into those schools — while
simultaneously shuffling an equal number of non-preferred students “down” —
won’t make America any fairer. 

Justice Kennedy and Affirmative Action

The Supreme Court holds oral arguments tomorrow in Fisher v. Texas, possibly the most consequential case in years involving affirmative action. Many of us critics of racial preferences are optimistic that Justice Anthony Kennedy, the likely swing vote, will agree to modify if not overrule Justice O’Connor’s ruling in the 2003 Grutter case, which, in the name of diversity, allowed state-run colleges and universities to grant racial preferences.

Part of the reason for our optimism derives from the fact that the conservative justices decided to take this case in the first place. Abigail Fisher, who was denied entry to the University of Texas, wound up matriculating at an out-of-state institution and no longer seeks Texas admission. The Court could have declared the issue moot (as a majority of the Court did in a parallel affirmative action case in 1974 regarding preferential admissions to the University of Washington law school) and refused to hear it. It could have refused to hear the case without further explanation.

The fact that the four conservative justices agreed to take the case indicates to many court watchers both that a) they intend to issue a decision that will reverberate well beyond Abigail Fisher and Texas, and that b) they probably have Anthony Kennedy on board as a fifth vote to make some serious modifications in, if not the outright overruling of, the Grutter standard.

Continue reading Justice Kennedy and Affirmative Action

Fisher and “Diversity”: The More Things Change…

Browsing through the collection of over
70 pro-“diversity” amicus briefs
submitted on behalf of the University of
Texas in the Fisher case, I am reminded, as I often am, of how eerily
the current defense of “taking race into account,” i.e., preferential treatment
based on race, resembles the old Southern arguments in defense of segregation.

As I have
on my blog a number
of times,
one of the oddest, saddest things about contemporary liberalism is the degree
to which it stands on the shoulders, and repeats the arguments, of dead
racists. Anyone, for example, who defends racial preferences must reject
Justice John Marshall Harlan’s stirring comment in Plessy that
“our Constitution is colorblind” and agree with the majority’s holding that the
14th Amendment does not require colorblindness and hence that racial
discrimination can in many circumstances be reasonable and hence

Opposing the Michigan Civil Rights Initiative
in 2006 (before he was convicted
and sent to prison
for fraud and corruption), Detroit Mayor Kwame
Kilpatrick declared
to applause in a speech to the NAACP, “We will affirm to the world that
affirmative action will be here today, it will be here tomorrow and there will
be affirmative action in the state forever.” Kilpatrick unwittingly channeled
George Wallace’s 1963 acceptance
as Governor of Alabama: “I draw the line in the dust and toss the
gauntlet before the feet of tyranny, and I say . . . segregation today . . .
segregation tomorrow . . .segregation forever!”

One of the most famous documents in the
South’s massive resistance to school integration was the “Southern
” of 1956, signed by 19 Senators and 77 Representatives, defending
states’ rights and criticizing the Supreme Court for overturning settled law.
To demonstrate how closely its arguments resemble current defenses of
preferential admissions I once posted a version of
that document
substituting “diversity” or “racial preferences” for
“segregation.” It is an uncanny fit. The Southerners argued, for example, that
“the ‘separate but equal’ principle [substitute: the amount of diversity and
the means of achieving it
] is within the discretion of the state in
regulating its public schools and does not conflict with the Fourteenth

The Jackson Clarion Ledger quoted a spokesman for the Mississippi
Attorney General’s office explaining that representatives from that state had
“signed on … in the interest of fighting to allow our universities to set their
own admission policies without unnecessary interference or second-guessing by
federal courts.” In a closely related legal document  Mississippi joined
several other states in asserting that “states must have the freedom and
flexibility to create strong institutions tailored to the needs of each
particular State and its citizens” and urging the Court “to reject petitioner’s
invitation to … destabilize the careful judgments that each State has made in
light of the conditions and needs facing its own particular institutions of
higher learning.”

The petitioner referred to above is actually
Abigail Fisher, and the attorney general’s spokesman is actually referring to
the amicus
Mississippi joined with New York, North Carolina and several other
states defending the University of Texas’s admitting some applicants and
rejecting others based on their race and ethnicity.

Mississippi, still defending racial
discrimination. The more things change….

An Unusual Brief Could Tip the Fisher Case

Stuart Taylor and Richard Sander have filed a fascinating
amicus brief
in the Fisher case,
hoping to bring some of the relevant social science research to the attention
of the Court, and (they fervently
hope)–to break through the closed-minded atmosphere through which most
colleges consider “diversity” issues. Taylor’s and Sander’s arguments doubtless
won’t persuade racial preference ideologues Sonia Sotomayor and Ruth Bader
Ginsburg, but their carefully reasoned brief provides grounds for Justice
Kennedy or even Justice Breyer to join the Court’s conservatives and scale back
the virtually open-ended use of preferences that the Grutter decision established.

Continue reading An Unusual Brief Could Tip the Fisher Case

Could “Diversity” Become Mandatory?

diversity mandate.jpgThose of us who were disappointed when a divided Supreme Court upheld the distribution of burdens and benefits based on race in Grutter are hopeful that decision might be overturned — or that at least its most deleterious effects might be reined in — when the Court revisits affirmative action next fall in Fisher v. University of Texas. It would be a mistake to assume, however, as many do, that the worst-case scenario is the possibility that racial preferences in admissions and hiring might remain legal. If this administration’s arguments about the unprecedented and virtually (or even actually) unrestrained power the government possesses are upheld — either in currently pending litigation or by a future Supreme Court with new justices appointed by a re-elected President Obama– then “diversity”-justified discrimination could actually become mandatory.

Consider, first, the administration’s view of government power.
Twelve Catholic bishops, the Archdioceses of New York and Washington,
Notre Dame, Catholic University, Catholic Charities and the Consortium
of Catholic Academies — all told, 43 plaintiffs in 12 concurrently
filed lawsuits — have charged the Obama administration with trampling
their religious liberty by requiring them to finance or enable behavior
that violates their religion. Both the Washington Post and the Wall Street Journal covered the lawsuit on their May 22 front pages; the New York Times
buried it on p. A17. They charge, both implicitly and explicitly, that
the government now refuses to recognize any limits to its power, that
it does not have to follow the rules that formerly restrained it.

Continue reading Could “Diversity” Become Mandatory?

Stereotype Threat Coming to the Supreme Court

studying.jpgGet ready for a brand new defense of affirmative action that you’ve never heard before: preferences are necessary to assure selection by merit. How can that be? Simple. Just rework Claude Steele’s theory of stereotype threat–that minorities do less well on tests than their abilities warrant out of fear that their performance will confirm negative stereotypes about their race or ethnicity. Greg Walton, an assistant professor of psychology at Stanford, and several co-authors have just dressed it up in a new study currently in press at the journal Social Issues and Policy Review. They plan to include their findings in an amicus brief supporting affirmative action in Fisher v. University of Texas.

According to a celebration of their work just published in Stanford News Today,
the authors believe they have come up with a gold-plated defense of
racial, ethnic, and even gender preferences that does not rely on the
promotion of diversity. The conflict between diversity and merit, Walton
et al. believe, is bogus. “Our argument is that you need affirmative
action to make meritocratic decisions – to get the best candidates.”

Continue reading Stereotype Threat Coming to the Supreme Court

Texas Finds That Discrimination Isn’t Cheap

Inside Higher Ed reports this morning that the University of Texas has hired a big Los Angeles-based law firm, Latham and Watkins, to defend its race-based admission policy before the Supreme Court in Fisher v. University of Texas, which the Supreme Court will hear next fall. “The law firm, with extensive Supreme Court expertise, will be paid a flat fee of $977,000, with up to another $10,000 for expenses.”

Continue reading Texas Finds That Discrimination Isn’t Cheap

“Diversity” Takes More Lumps

“Diversity,” as everyone surely knows by now, is the sole remaining justification for racial preference in higher education allowed by the Supreme Court. Defenders seem to regard it as even more essential to a good education than books in the library or professors behind the podium. But a funny thing has been happening on the way to the Supreme’s Court revisiting racial preference in the Fisher case next fall: an increasing array of academic studies has been demonstrating that the “diversity” emperor has no clothes.

Continue reading “Diversity” Takes More Lumps

The “Mismatch Thesis,” Eye-Opening Research, and the Fisher Case

As the most important higher-education case in a decade makes its way to the Supreme Court–the Fisher case on racial preferences–UCLA law professor Richard Sander had an excellent series of posts at the Volokh Conspiracy summarizing one critical argument that his research has helped to highlight: that even the ostensible beneficiaries often are harmed (or at the very least, not helped) by racial preferences in admissions. I strongly recommend Sander’s three-part series, and thought it would be useful to summarize its main points.

Continue reading The “Mismatch Thesis,” Eye-Opening Research, and the Fisher Case

The Anger of Affirmative Action Advocates

Kevin Carey, policy director at Education Sector, a DC think tank, has a commentary in this week’s Chronicle of Higher Education that signals the kind of rhetoric we may expect from proponents of affirmative action as the Fisher case heads to the Supreme Court. It is a mixture of high-mindedness for one side and denunciation of the other.

Continue reading The Anger of Affirmative Action Advocates

Admission Standards and How to Lower Them Legally

Surprise, surprise. Affirmation action for college admissions is yet one more time in the hands of the Supreme Court (Fisher v. Texas). Given the Court’s changed personnel from the last go around (Grutter v. Bollinger, 539 U.S. 306 2003), race-based preferences may soon be history. But, would this judicial outcome finally doom preferences? Opponents of affirmative might wish to hold off celebrating.

Continue reading Admission Standards and How to Lower Them Legally

What Will the Court Do About Affirmative Action?

As you probably know by now, the Supreme Court has agreed to hear Fisher v. Texas, depending on your point of view a promising or threatening challenge to affirmative action. Major and minor media, blogs, whatever, are all filled with cries of hope or wails of fear that the racial preferences sanctified in Grutter will be overturned or at most/least seriously reined in.

Some of that discussion is inane, such as Jesse Jackson’s almost humorous charge quoted by Inside Higher Ed that critics of double standards in college admissions practice double standards themselves because they think racial preference is worse than athletic preference, a ridiculous argument I discussed a few days ago here. Also inane is a statement quoted in the same article by Michael A. Olivas, director of the Institute of Higher Education Law and Governance at the University of Houston, “that there is no evidence that consideration of race is excluding anyone from higher education.” Of course, eliminating consideration of race wouldn’t deprive anyone of higher education either; those no longer preferentially admitted to selective institutions would simply go to less selective institutions. And some of the discussion is both inane and offensive, such as Olivas’s further comment “that aggrieved whites who bring these cases will not be pleased as long as there is a black or Mexican in college.”

The Top Ten Percent

Also by now the broad outline of the long-roiling conflict over the use of race in college admissions and hiring — is it necessary to produce educationally essential “diversity” or should it be prohibited like other forms of outright discrimination that distribute benefits and burdens based on race? — no longer needs to be rehearsed. There are, however, two distinguishing elements of Fisher that do merit discussion: the effect of the “Top 10%” admissions policy adopted at Texas after affirmative action was first outlawed there and still in effect; and what if any weight the Court will give to the growing body of scholarship — with which it will be confronted for the first time — summarized in briefs demonstrating that the “mismatch” effect of racial preferences actually harms those who receive the preferential treatment.

In order to ensure the admission of “a large well qualified pool of minority students,” in 1997 Texas enacted a law requiring the University of Texas (UT) to admit all Texas high school seniors ranking in the top 10% of their classes. By 2000 the enrollment levels of blacks and Hispanics had returned to the levels of 1996, the year before Hopwood outlawed race-based affirmative action. By 2004, “the entering freshman class was 21.4% African-American and Hispanic, thus significantly exceeding the minority enrollment rates achieved under UT’s pre-Hopwood race preference system.” Notwithstanding the success of the race-neutral program, UT re-instituted race-based affirmative action on the day Grutter gave the green light. (Petitioners Petition for Certiorari, pp. 6-7)

Grutter purported to require “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks,” but most observers have read that ostensible requirement as little more than rhetorical window-dressing on the endorsement of racial preference. That is certainly how preference-granting institutions have read it. Thus one possible outcome of Fisher would be for the Court to say that it really meant what it said, engage in “strict scrutiny” that unlike in Grutter was in fact strict, hold that the Top 10% plan provides more than adequate “diversity,” and prohibit additional race preferences.

How Much  Diversity is Enough?

UT, no doubt anticipating this possibility, has come up with the radical rejoinder that, despite its success, the Top 10% plan is insufficient because it has not succeeded in bringing “diversity” to every classroom. You read that right: every classroom. In his Fifth Circuit opinion affirming the district court’s denial of Fisher’s discrimination complaint, Judge Patrick Higginbotham wrote that while the Top 10% law “may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity.” Relying on data provided by UT, Higginbotham noted that in Fall 2002 90% of smaller classes “had either one or zero African-American students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students.” Thus, he concluded,

It is evident that if UT is to have diverse interactions, it needs more minority students who are interested in and meet the requirements for a greater variety of colleges, not more students disproportionately enrolled in certain programs. The holistic review endorsed by Grutter gives UT that discretion, but the Top Ten Percent Law, which accounts for nearly 90% of all Texas resident admissions, does not.

The Fifth Circuit voted 9-7 against an en banc review of Judge Higginbotham’s decision. In a blistering dissent for five of those seven, Judge Edith Jones wrote:

… in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level–in a university that offers thousands of courses in multiple undergraduate schools and majors–justifies enhanced race-conscious admissions….

The pernicious impact of aspiring to or measuring “diversity” at the classroom level seems obvious upon reflection. Will the University accept this “goal” as carte blanche to add minorities until a “critical mass” chooses nuclear physics as a major? Will classroom diversity “suffer” in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be “underrepresented.” It offers no stopping point for racial preferences despite the logical absurdity of touting “diversity” as relevant to every subject taught at the University of Texas. In another extension of Grutter, the panel opinion’s approval of classroom “diversity” offers no ground for serious judicial review of a terminus of the racial preference policy.

Over the years on my blog I have joked a number of times — at least at the times I thought I was joking — that, as I put it here, “if ‘diversity’ is important enough to the education of non-minority students at selective institutions to justify sacrificing the right of applicants to be free from racial discrimination, it’s important enough to draft some minority students and require their attendance” where it’s needed. If by some fluke the Supremes uphold Judge Higginbotham’s decision, it would be downright irresponsible of UT and other institutions not to assign preferentially admitted minority students to classes that need the “diversity” they would provide, just as diversiphiles insisted on the desirability of assigning K-12 students to schools by race.

The Mismatch Theory 

Readers of Minding The Campus are no doubt familiar with the “mismatch” theory pioneered by UCLA law professor Richard Sander. Now, the Supreme Court will have the opportunity to consider the evidence supporting it. In two powerful briefs urging the Court to grant cert — one by Sander and Stuart Taylor Jr. and the other by Gail Heriot, Peter Kirsanow, and Todd Gaziano (all members of the U.S. Commission on Civil Rights) — and presumably in additional briefs they will file now that the Court has accepted the case, the Court will be presented with the scholarship demonstrating that minorities who receive preferential treatment in admissions cluster in the bottom 10% of their classes and have much lower grades, graduation rates, and bar passage rates than their non-preferred peers. In fact, Sander et al. conclude, there are actually fewer black lawyers, engineers, and other STEM professionals than there would have been absent the preferences. Read the briefs for the excruciating chapter and verse.

Justice O’Connor held in Grutter that the “educational benefits” that flow from “diversity” constitute a “compelling interest” that can justify racial preference, but it is clear from the evidence amassed here that those benefits, whatever they are, do not flow to those who receive the preferences. Sander and Taylor argue that the Court’s past decisions

make clear that racial preferences in higher education are tolerated under constitutional law — to the extent that they are tolerated — only on the assumption that they are benefits conferred upon relatively powerless minorities. If preferences turn out to have mostly harmful effects — or even if the effects are often harmful and on balance ambiguous — then the fundamental legal premise for permitting this type of racial classification is gone.

Those of us opposed to distributing benefits and burdens based on race owe an enormous debt of gratitude to Sander and the scholars he cites, many of whom were inspired by his own work, and I certainly hope the Court takes this evidence to heart, and mind, and reverses Grutter or at least severely constrains its effects. I do, however, perhaps confirming that no good work goes uncriticized, want to offer one quibbling clarification and conclude with a more serious concern.

First the quibble: it may well be true that the courts have tolerated racial preferences only on the assumption that they benefit, and are intended to benefit, the preferentially admitted minorities, but if so they (like virtually everyone else) do not believe the justification offered by the institutions granting them. That justification, more like a mantra — that “diversity” is essential to a good education — in practice means that it is necessary to lower the bar for the preferred minorities so that the un-preferred Asians and whites can receive the benefit of being exposed to them. The preferentially admitted do not, after all, provide “diversity” to themselves. They would receive that benefit even if, in the absence of preferences, they attended less selective institutions. In practice, some Asians and whites are excluded from selective institutions because of their race so that other more fortunate Asians and whites can be exposed to the preferentially admitted minorities. Interestingly, if the Court were to recognize this reality, it might not care that preferential treatment is bad for the preferred since “diversity” doesn’t exist for them in the first place and they would still provide it from the bottom of their classes, etc.

More seriously: Sander and Taylor make a virtue of basing their conclusions on confirmable facts regarding the effects of preferences on the preferred, not on morality or principle. Their leading argument is that

Social Science Research Has Undermined The Central Assumption Underlying All Racial Preference Programs In University Admissions: That They Are Good For The Intended Beneficiaries

Aside from the quibble discussed above regarding who the intended or real beneficiaries are, there is a troubling question here: does resting the rejection of racial preference on social science findings imply that the discrimination required to produce the desired “diversity” would or should be acceptable if only it were good for the preferred? Social science findings, no matter how impressive, are often not timeless and can provide a weak foundation on which to rest a right that many think of as flowing from the fundamental American value that everyone should be judged without regard to race, creed, or color. Kenneth Clark’s famous doll study used in Brown v. Board of Education, for example, does not look as impressive now as it did to many observers in 1954.

This is not the place, and I am not the person, for a long disquisition on the proper relationship between facts and law in Supreme Court jurisprudence, but mention of one non-Fisher example may be in order. Criticizing Rick Santorum on Huffington Post recently for suggesting that recognition of a fundamental individual right to same sex marriage might lead to recognition of polygamy, Eliyahu Federman cited the 2008 California Supreme Court decision affirming same-sex marriage but also asserting that “polygamous or incestuous relationships” are not protected because they are “inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”

That, of course, sounds just like those who criticize same sex marriage, but according to Federman “[t]here isn’t a shred of modern sociological evidence to support the claim that gay marriage is harmful to society, whereas there is a plethora of historical and contemporary evidence to illustrate the dangers associated with polygamy.”

I offer no opinion about the persuasiveness of the “sociological evidence” used in California and on Huffington Post to deny rights to those individuals who want to marry more than one person and to affirm the right of individuals of the same sex to marry, but I do believe that both the affirmation and denial of fundamental rights need to rest on something more substantial than sociological evidence.

Perpetuity Isn’t Forever (If “Construed Liberally”)

Japanese Garden CA.jpg

Most people believe that “in perpetuity” means forever, or at least until hell freezes over. But not the University of California at Los Angeles, which is now proceeding to sell a Japanese garden that it had accepted as a gift after promising to keep and maintain it “in perpetuity.”

How, you may well ask, can they do that? Easy. By taking reading lessons from liberals, especially liberal lawyers. In an essay on this site a couple of weeks ago I provided chapter and verse of how statutory language that was “perfectly clear,” “crystal clear,” to a Supreme Court Justice, John Paul Stevens, for the first decade of his tenure on the Court became in subsequent years subject to interpretation that was completely opposite. By applying what he termed “a flexible approach to the law,” Stevens, far from being unique, became the archetype of a liberal judge.

Those of us who believe that a promise is a promise, that “perpetuity” means forever, that words mean what they say are held in contempt as inflexible, close-minded, strict constructionists who are guilty of “reading literally.” (Do lax constructionists believe the Constitution should be read figuratively?) We are the sort of people who believe, say, that a statute providing that a candidate can be replaced on a ballot up to 51 days before an election means that a candidate cannot be replaced 36 or 47 days before an election, that a statute requiring county election boards to submit certified results by 5 p.m. of the seventh day after the election actually imposed a requirement to submit results within seven days.

How naive, we were in effect told by the New Jersey Supreme Court when it allowed Democrats to substitute Frank Lautenberg for the discredited Robert Torricelli on U.S. Senate ballot well after the “deadline” provided by statute and by the Florida Supreme Court when in Bush v. Gore it added 12 days to a long-standing statutorily imposed “deadline” to submit certified election results. How could courts ignore the plain meaning of such unambiguous terms as “51st day” and “seventh day”? Again, easy. As the New Jersey Supremes helpfully explained [814 A.2d 1028.], “the election statutes should be liberally construed.”

What is odd, and most dismaying, about judges ignoring clear and unambiguous text is that it’s not odd at all. It’s simply an expression of the currently conventional liberal approach to interpretation. Liberals, not surprisingly, are quite good at construing liberally. They are not so good, however, at simply reading. They dismiss statutory deadlines as “formal deadlines,” as then New York Times Supreme Court reporter Linda Greenhouse did in writing about the New Jersey case. “Construing liberally,” if it involves any actual reading at all, requires reading “loosely,” as the Washington Post put it in an editorial (“The Supreme Court of New Jersey read quite loosely state election law…”).

Now, demonstrating that campus-based liberal construers can liberally construe at least as well as liberal judges and journalists, UCLA is selling a Japanese garden donated to it on the condition that UCLA keep and maintain it “in perpetuity.”

But what does “in perpetuity” really require in our post-modern society? “Perpetuity is a long time,” a Los Angeles Times editorial somberly observed.

Today the university finds itself desperate for discretionary funds for its core academic programs, and the garden, officials say, serves no academic purpose. Public access is limited as well. Parking is nearly nonexistent. And the university has spent more than $1 million in the last decade to meticulously maintain the garden — one reason its value remains intact. For all those reasons, a court is allowing UCLA to sell the garden.

So, when the Chronicle of Higher Education asks, “Does ‘in Perpetuity’ Mean ‘Till the Price Is Right’?” the obvious answer is: Why not? If a plain reading of unambiguous text would prevent us from doing what we want to do, then what we must do is find a judge skilled in the art of construing liberally. Unfortunately, as UCLA discovered, that’s not hard to do.


Ex-Justice: Civil Rights Act ‘Poorly Considered’

John Paul Stevens.jpg

When Justice John Paul Stevens retired from the Supreme Court in 2010 ABC News noted that over the course of his 34 years on the Court he “became a hero to liberals[,]  voting to … uphold affirmative action” and other liberal causes. Now he has written an autobiography, Five Chiefs: A Supreme Court Memoir, ruminating on that long, liberal career. Regarding affirmative action, however, those ruminations are misleadingly selective.

U.S. News World Report interviewed Justice Stevens a few days ago about his memoir, claiming that he “gives candid views of the five chief justices he has worked with, as well as his take on some of the most significant cases in U.S. history.” I don’t know about the other “most significant cases,” but Justice Stevens’ very brief references to affirmative action in Five Chiefs and his comments about it to U.S. News are considerably less than candid.

His comments in the book are limited to a few sentences about Grutter, where he endorsed Justice O’Connor’s rejection of “language in the Court’s earlier opinions that suggested that remedying past discrimination was the only permissible justification for race-based governmental action.” There was, of course, considerably more than “language” to that effect in those earlier opinions, but leave that aside. The point Stevens is at pains to make here is that the Court had finally

endorsed the views that I had unsuccessfully espoused in an earlier case that involved a black high school teacher in Jackson, Michigan. The Court’s holding — that the law school had a compelling interest in attaining a diverse student body — emphasizes the future rather than the past.

Stevens has been singing this same tune for quite a while. Shortly after swearing in the current Chief Justice, Justice Stevens emphasized the importance of “a flexible approach to the law” to a Fordham law school audience, adding that “learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years.” His example: “With respect to the constitutionality of affirmative action,” he said, “we have learned that justification based on past sins may be less persuasive than those predicated on anticipated future benefits.” Left unstated was who “we” are.

Looking to the Future, Not the Law

Stevens made that same point, and only that point, in his U.S. News interview, where his affirmative action comments consisted entirely of the following exchange:

Have you changed your view on affirmative action?

I had to make decisions in different contexts. And in some of the early affirmative action cases, Congress had passed a statute that was very poorly considered. In early cases, the courts seemed to think of affirmative action merely as a remedy for past wrongdoing.

What should they have done instead?

Looked at the benefit that affirmative action could produce for the future.

This “different contexts” explanation of his earlier views — which he failed to mention were the opposite of his later views — is disingenuous at best. That “very poorly considered statute” was, of course, the Civil Rights Act of 1964, perhaps one of the best considered pieces of legislation in our history, and in any event it is unseemly for a Supreme Court justice to blame opinions he now regrets on shoddy work by Congress. “Different contexts,” in short, doesn’t begin to describe or explain the radical transformation of Justice Stevens’ approach to governmental thumbs on the racial scale, especially when the reversal of his earlier views cannot be explained by any changes in the 1964 act, whose relevant text didn’t change.

Justice Stevens was correct to note that in Grutter the Court accepted the argument of his 1986 dissent in Wygant v. Jackson Board of Education that “diversity” can justify governmental distribution of benefits and burdens based on race. What he did not mention is that Wygant was decided eleven years after he had been appointed to the Court and that it was the first time he ever approved a racial classification. Indeed, over the course of his first decade on the Court Stevens had, in the words of a scholarly survey of his decisions on race, “seemed destined to be one of the Supreme Court’s most vigorous opponents of affirmative action.”

A year after his appointment Justice Stevens joined the opinion of the Court in McDonald v. Santa Fe Transportation Co., which held that the Civil Rights Acts of 1866 and 1964 protected whites as well as blacks from discrimination. Two years later, in a long concurring opinion in Bakke, he offered a penetrating, compelling criticism of the “diversity” road on which the Court had, he then thought, disastrously embarked. That criticism was based on a thoroughly researched and entirely persuasive analysis of the legislative history, intent, and clear text of that same Civil Rights Act of 1964 that he now derides as “poorly constructed.”

Here is a powerfully argued excerpt from Stevens’ concurrence (emphasis added but citations omitted):

Section 601 of the Civil Rights Act of 1964 … provides:

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.

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.


Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of 601’s categorical prohibition of “exclusion” is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow “excluded from” do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.

The only suggestion that the Civil Rights Act would allow discrimination against whites, Stevens emphasized, “came from opponents of the legislation.” He quoted the following, for example, from a Congressional opponent:

Presumably, the college would have to have a “racially balanced” staff from the dean’s office to the cafeteria….

The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual…. The concept of “racial imbalance” would hover like a black cloud over every transaction….

Justice Stevens rejected this view root and branch, quoting extensively from the record of debates to show that Congress quite clearly imposed a colorblind standard that barred discrimination for or against any race and that precluded the kind of imposed “racial balancing” feared by the Act’s critics. “Our Constitution is colorblind,” he quoted Sen. Pastore (D, RI) exclaiming (along with many others), “and so must be our government.”

The Ban on Racial Favoritism was ‘Crystal Clear’

In short, Stevens concluded, the Civil Rights Act’s prohibition of racial favoritism by the government was “crystal clear.” Nothing, he insisted,

justifies the conclusion that the broad language of 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. As succinctly phrased during the Senate debate, under Title VI, it is not “permissible to say ‘yes’ to one person, but to say ‘no’ to another person, only because of the color of his skin.”

Justice Stevens consistently opposed racial classification and preference for over a decade. In a sharply worded dissent in Fullilove v. Klutznick (1980), for example, he strenuously objected to a racial set-aside program, noting that allowing such a race-based program could create “a permanent source of justification for grants of special privileges.” Racial classifications, he argued, “are simply too pernicious to permit any but the most exact connection between justification and classification. Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians.” Indeed, he concluded, “the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals.”

In short, it is clear beyond cavil that Justice Stevens’ decade-long belief that race-based affirmation action violates the “plain meaning” of Congress’s “perfectly clear,” “crystal clear” “distinct statutory prohibition” was not dictated by deference to a “poorly considered” Civil Rights Act. Those “crystal clear,” “perfectly clear” words, after all, didn’t change. Justice Stevens simply changed his mind, contributing significantly to an expansion of racial preference that ironically resulted in the fears of the opponents of the Civil Rights Act that it would lead to “racial balancing” proving more prescient than the denials of its supporters.

Everyone, of course, is entitled to change his mind. Learning, as Justice Stevens stated, requires that flexibility. But Supreme Court justices are not just anyone.

Because their opinions become law, when they change their minds they are obligated to provide reasons. And when their “learning” leads not to a deeper understanding of such substantively opaque terms as “due process” or even “equal protection” but, as with Justice Stevens, leads him to abandoning a long-held deference to an unchanged “crystal clear” legislative prohibition, he owes us an explanation that is totally absent from both his memoir and his U.S. News interview.

Is the Court Changing Its Stand on Religious Freedom?

On June 28, 2010, the Supreme Court of the United States narrowly ruled in Christian Legal Society v. Martinez that a university’s “all-comers” nondiscrimination policy trumped the right of a Christian student organization to select its leaders according to the group’s religious beliefs.   According to the Supreme Court, a Christian student group confronted with such a policy could not exclude a Muslim or atheist from leadership and had to give them the same chance to lead as a Christian.   It was “surely reasonable,” declared the Court that “the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students.”

Continue reading Is the Court Changing Its Stand on Religious Freedom?

A Major Brief Against Preferences

Stuart Taylor, my colleague from the lacrosse case, and UCLA Law School professor Richard Sander, have filed a brief urging the Supreme Court to hear Fisher v. University of Texas, the University of Texas racial preferences case. Hopefully the brief will achieve its purpose; it certainly presents a compelling indictment of the racial preferences structure that governs most admissions policies in higher education.

Taylor and Sander urge the Court to look beyond the deeply misleading, even deceptive, rhetoric provided by defenders of the academic status quo. They note that while pro-preferences administrators and their allies often frame the use of preferences as tiebreakers, this claim is simply not true. At Texas, for instance, among those students admitted outside of the university’s top-10% admissions scheme, “Asians scored at the 93rd percentile of 2009 SAT takers nationwide, whites at the 89th percentile, Hispanics at the 80th percentile, and blacks at the 52nd percentile.”

Continue reading A Major Brief Against Preferences

Campus Diversity: Taking Allport Seriously

Gordon Allport.jpg

Some key questions are rarely asked about the success or failure of affirmative action programs on college campuses.  Among them are: Does ignorance foster negative racial stereotyping?  Does the greater opportunity for contact between people of diverse races and ethnicities brought about by “race-sensitive admissions” help prejudiced whites overcome their prejudice against blacks and other “people of color”?

Unfortunately, not many good studies out there address these issues in any systematic or candid manner.  Most high-level college administrators and college presidents, however, are quick to assure us that the racial mix they strive to achieve on campus through their affirmative action initiatives promotes greater interracial understanding and good will.  This is certainly what we hear from the leading champions of greater “diversity” on university campuses.  It is the line we get, for instance, from Lee Bollinger, former president of the University of Michigan and now president of Columbia; from William Chace, former president of Emory; and from both Derek Bok and William Bowen, former presidents, respectively, of Harvard and Princeton, who in their influential study, The Shape of the River, tried to convince doubters that preference policies at elite universities have none of the harmful effects critics have long ascribed to them.

Continue reading Campus Diversity: Taking Allport Seriously

Two Campus Free-Speech Cases Aimed at the Supreme Court

If you care about free speech on college campuses, there could hardly be a more sympathetic figure than Jonathan Lopez.  A  student at Los Angeles City College (LACC) in 2008,  when California voters  rejected Proposition 8 , he was one of the first victims of the rage of gay-rights advocates and their academic allies: a week  after  the vote, Lopez tried to fulfill an assignment by giving a classroom speech on his Christian faith and his Biblically-based opposition to gay marriage. His professor, John Matteson, a supporter of gay marriage and Proposition 8, allegedly called him a “fascist bastard,”  refused to give him a grade on the talk and later allegedly promised to get him expelled.
Lopez is a key player in one of two federal cases currently on petition for review by the U.S. Supreme Court challenging the constitutionality of campus “hate speech” codes that can punish students for expressing views that are protected by the First Amendment but don’t jibe with the progressive ethos of many college administrators and faculty. The other free-speech case involves an anti-abortion group at the University of Maryland-Baltimore that was in effect silenced  in 2007 when forced to move a graphic display on abortion to a remote part of campus. University officials had ruled that the display might offend some students. If the Supreme Court decides to review the two cases, the result could be a death blow to speech codes at public institutions of higher learning. Though speech codes have not fared well in the courts, they have been a much-criticized but common fixture of campus life since the 1980s.
There is a problem, however, that could derail both lawsuits: Did Lopez and the University of Maryland group, Rock for Life (now Students for Life), suffer actual injury and thus have standing to sue to have the speech codes declared unconstitutional? A 1992 Supreme Court decision, Lujan vs. Defenders of Wildlife, denied standing to environmentalist groups that wanted to mount a court challenge to some Interior Department regulations they deemed insufficiently rigorous, ruling that challengers to a law or policy have to show some concrete injury caused by the law that is “actual or imminent, not conjectural or hypothetical,” as legal commentators have put it. Plaintiffs in First Amendment cases can establish standing via a looser standard, simply by alleging that the regulation in question is so overly broad that it has a “chilling effect” on their own or others’ efforts to express themselves freely. But some federal appeals courts have ruled that even those plaintiffs must claim a concrete injury, such as actual or threatened enforcement of the regulation against them. Among those courts are the Fourth Circuit (in the Rock for Life case) and the Ninth Circuit (in the Lopez case), both of which ruled that since no one had tried to enforce a speech code directly, the lawsuits had to be dismissed for lack of standing. Other federal appeals courts appear to hold to the contrary–and that division of opinion alone may persuade the Supreme Court to review the two rulings.

Continue reading Two Campus Free-Speech Cases Aimed at the Supreme Court

Judge Garza’s Insights

Below, my colleague Charlotte Allen appropriately laments the recent 5th Circuit decision upholding the University of Texas’ racial preferences scheme, in the process expanding the scope of Grutter. She also praises the de facto dissent of Judge Emilio Garza.
Garza’s opinion is worth reading in full, if only because it represents a rare instance of a federal judge who seems to have a clear, real-world understanding of how higher education functions. And Garza’s analysis makes for a depressing read of how Grutter has actually operated.
In one respect, Garza’s opinion represents a transparent call for the Supreme Court to reconsider the constitutionality of racial preferences. As he observes, “Grutter sought to have it both ways. The Court held that racial diversity was necessary to eradicate the notion that minority students think and behave, not as individuals, but as a race. At the same time, the Court approved a policy granting race-based preferences on the assumption that racial status correlates with greater diversity of viewpoints.”

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More Wreckage from Ginsburg’s ‘Neutral’ Ruling

When the Supreme Court ruled in June that public universities could deny official recognition to a Christian student group that barred openly gay people as members because homosexual acts are considered sinful by many Christian churches, some commentators hoped that the 5-4 ruling would be construed as a narrow one that permitted but did not require campuses to enforce their anti-bias policies in ways that interfered with religious belief. (Writing for the high court majority, Justice Ruth Bader Ginsburg said that the state-supported Hastings College of Law’s policy of requiring student groups to take all comers in order to qualify for official status was a neutral one that did not interfere with religious freedom.)
Think again, optimistic commentators. Already this summer two federal lower-court judges have used the high court’s decision in Christian Legal Society of the University of California vs. Martinez to uphold the right of two different tax-supported universities to expel Christian graduate students from counseling programs because those students could not in good conscience agree with the fashionable prevailing ideology—endorsed by the American Counseling Association—that homosexual activity is morally neutral and that gay people should be counseled in “affirming” ways that essentially endorse their lifestyles.
It turns out that the word “permit” is the operative one. University and college administrators have interpreted the Martinez decision as giving them carte blanche to restrict religious expression on campus as long as administrators could characterize the restrictions as “reasonably related to legitimate pedagogical concerns,” in the words of Ginsburg. After the Martinez decision came down, David French, a senior counsel for the Alliance Defense Fund, which represents both graduate students, said that the Supreme Court’s June ruling set in motion “a disturbing trend” of “excessive deference to university administrators” that would allow them to enforce politically correct speech codes simply by making them into curricular requirements that they could argue were neutral on their face.

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