Jason L. Riley: The Supreme Court’s Opportunity on Racial Preferences As they hear arguments in Fisher v. University of Texas at Austin, the justices can help explode harmful myths about race-based college admissions.
http://www.wsj.com/articles/the-supreme-courts-opportunity-on-racial-preferences-1449617986
“It seems that almost every year since the middle 1970s,” wrote Harvard sociologist Nathan Glazer, “we have awaited with hope or anxiety the determination of some major case by the Supreme Court, which would tell us that affirmative action transgressed the ‘equal protection of the laws’ guaranteed by the Fourteenth Amendment . . . or, on the contrary, determine that this was a legitimate approach to overcoming the heritage of discrimination and segregation and raising the position of American blacks.”
Mr. Glazer wrote that in 1987 and couldn’t possibly have imagined it would hold true some 26 years later. Yet on Wednesday the Supreme Court is set to hear oral arguments in this year’s major affirmative-action case, Fisher v. University of Texas at Austin. It will be the high court’s second go-round with the case, which concerns a plaintiff named Abigail Fisher who says the university discriminated against her as a white woman in rejecting her application.
In 2013 the justices voted 7-1 to send the case back to the Fifth U.S. Circuit Court of Appeals without ruling directly on the constitutionality of Texas’ affirmative-action program. Instead, the appeals court was instructed to re-evaluate whether a race-based admissions policy was really essential to the university meeting its diversity goals. The Fifth Circuit issued a second ruling last year, once again siding with the university, and now the case is back before the Supreme Court.
In a 2003 decision, Grutter v. Bollinger, the Supreme Court upheld the use of racial double standards as a last resort in achieving “student body diversity.” One question before the court on Wednesday will be whether the University of Texas has in fact exhausted all of its race-blind options and is left with no other way to enroll what it considers a “critical mass” of black and brown students.
Since the Fifth Circuit didn’t bother, perhaps the justices will ask the university how it defines a “critical mass” of underrepresented minorities, how admissions officers know when it has been attained, and precisely how it furthers the school’s educational interests. In 1997, the Texas legislature instituted a race-neutral policy that guarantees students who graduated in the top 10% of their high school classes automatic admission to Texas public colleges and universities. Minority enrollment increased dramatically as a result, so why does the University of Texas still need to racially discriminate?
The Supreme Court has already banned the overt use of racial quotas and set-asides, yet it continues to pretend that these practices don’t persist in everything but name. Court majorities studiously avoid ruling on whether the equal-protection clause in the Constitution means what it says, and college admission officials continue to favor certain racial groups over others in the name of meaningless and unquantifiable notions, such as “diversity” or “critical mass.”
Liberals today condone state-sponsored racial discrimination in the name of helping black people. But as Justice Clarence Thomas’s concurrence in the first Fisher decision explained, this was the same reasoning used by white segregationists in the Jim Crow era. “Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950s, but emphatically rejected by this Court,” Justice Thomas wrote. “And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then . . . the alleged educational benefits of diversity cannot justify racial discrimination today.”
Racial favoritism has correctly been described by Chief Justice John Roberts as “a sordid business,” and we should hope that the court can finally bring itself to outlaw the practice. But in addition to being foul, racial preferences have been counterproductive in addressing the needs of the intended beneficiaries. Smart students who would be academic stars at most schools are steered into institutions where they are overmatched academically in relation to their peers but satisfy the needs of administrators who care more about skin tones than graduation rates.
After the University of California system banned racial preferences in 1996, black and Hispanic enrollment declined at the more selective Berkeley and UCLA, but those reductions were largely offset by a rise in enrollment at less selective schools in the system. More important, empirical studies conducted by UCLA law professor Richard Sander show that the share of black and Hispanic graduates grew by more than 50% throughout the University of California system, including among graduates in the more challenging disciplines of math and science.
When college administrators play racial favorites, stigma and resentment ensue. The tensions we see on campus today are directly related to the racial spoils system that has evolved in academia over the past half-century. The left is trying to reconcile group preferences with equal protection under the law, and the Supreme Court in its ruling ought to explain why those two things are irreconcilable.
Mr. Riley, a Manhattan Institute senior fellow and Journal contributor, is the author of “Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed” (Encounter Books, 2014).
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