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A Disappointing Decision in Fisher II

The Supreme Court ruled last Thursday in Fisher v. University of Texas, upholding that school’s use of racial and ethnic preferences in undergraduate admissions.  It’s a disappointing decision, but there are a few silver linings.  I discuss all this in the essay below which Inside Higher Ed requested and published:

The U.S. Supreme Court has upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.

The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.

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. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.

As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: If a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And 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. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”
Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.

More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions 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 you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.

That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.

Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.

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

And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)

And the costs? Just these: 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-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.

And more: 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 college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions 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 I said before, as America becomes an increasingly multiracial, multiethnic society.

So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.

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As the Center for Equal Opportunity said in its press release last week on the day of the decision:  The Fisher II decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and CEO looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.

The Disappointing Decision in Fisher v. University of Texas


Thursday June 23, 2016   
CONTACT: Roger Clegg
(703) 442-0066

The Disappointing Decision in Fisher v. University of Texas

CEO Weighs in on SCOTUS’s Affirmative Action Decision

(Falls Church, VA)Linda Chavez, chairman of the Center for Equal Opportunity (CEO), said today:  “We are disappointed in today’s decision, which upholds the use of racial preferences in student admissions at the University of Texas.  Such discrimination is untenable in our increasingly multiracial, multiethnic society – indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.”

Roger Clegg, president of the Center for Equal Opportunity, said: “Today’s decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and the Center for Equal Opportunity looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.”

The Center for Equal Opportunity has been involved in this case for years, joining and helping write multiple briefs before the Supreme Court and the court of appeals.  Those briefs emphasized the many studies that CEO has done over the years, documenting the heavy weight schools give to race and ethnicity in their admissions.  Even before the litigation began, CEO filed a complaint against the University of Texas with the U.S. Department of Education, challenging the discriminatory admissions policy that the school uses.

The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational organization that studies issues relating to race and ethnicity nationwide.


7700 Leesburg Pike, Suite 231 • Falls Church, VA 22043 • (703) 442-0066 •

The Washington Post Hides the Ball

Dan Rooney

The Washington Post had a long article recently headlined in the hard copy, “Why do poor boys become jobless men?” (the headline on the jump-page was “Study: Poverty especially harmful to job prospects of boys”). 

It begins by noting that, while generally and historically men have been more likely to work than women, in some places now there is a “reverse gender gap” and it is men who are less likely to have jobs. And it goes on and on about poverty and race and geography and segregation, dropping a few tantalizing references to “unstable, high-poverty environments” and “family, schools and policy” and a shortage of “male role models” and “child support” — but doesn’t really get to the key point.

The key point is buried, just where you would bury something in a long article if you felt like you sort of had to mention it but didn’t want it to be noticed.  You would mention it just once, and it would be near the end — not at the very end, because then someone who wanted to see what the article’s conclusions were might actually read it. And you would put it in the middle of a paragraph, though that isn’t easy since newspaper paragraphs are so short. And you would not even have it be a sentence on its own, but just part of a sentence. 

That’s where you would reveal that the reverse gender gap “appears only among poor children with unmarried parents . . .”

Loony Rooney Rule To Be Expanded – The National Football League will now require at least one woman to be interviewed for all executive openings — an expansion of the “Rooney Rule,” which requires at least one racial minority to be interviewed when filling any head coaching vacancy.  But the Rooney Rule is illegal, as I explain here, and of course so is expanding it.

And I should also note that the University of Texas has adopted the Rooney Rule for its hiring of administrators.  I’m quoted as criticizing this development here.

Wrongly Getting Numbers Right – The U.S. Court of Appeals for the Seventh Circuit has handed down a good decision, reinstating the racial discrimination claim of a white male who was laid off, he said, because his company wanted to get its numbers right.  For example, the plaintiff asserted that, when asked the reason for his termination, his supervisor explained, “My minority numbers aren’t right. I’m supposed to have 13.9 percent minorities on this job and I’ve only got 8 percent.”  Hmmm, that does sound a little suspicious.  The court of appeals said it was “puzzled” that the district court didn’t think there was any evidence of racial discrimination in light of this and other statements in the record.  Indeed. 

By the way, these quotas – I mean goals – came from the federal government.  And those goals themselves should be challenged, along with the federal government and its regulations, as I discuss here.

Harvard Admissions Update – I noted a couple of weeks ago that there is a move afoot to havefree tuition at Harvard, in conjunction with more transparency in admissions — with an eye, in particular, on stopping racial admissions discrimination.  Read all about the intriguing new campaign in this New York Times article.  And here’s an update:  The petition-drive has been successful, and a slate of candidates who will be backing this initiative has been approved and will be on ballot.

U.Conn U.Can’t Be Serious – The University of Connecticut recently announced that it would be opening a “ScHOLA2RS House,” which is a “living-learning community for African-American male students,” although the school also says that, technically at least, it might be open to some nonblack students.
I was quoted in the Inside Higher Ed article about this bad idea: 

“Forget about this nonsense and just treat students without regard to skin color,” Clegg said. “If there are students of color who are at risk or who could use some access to special programs, that’s fine, but schools shouldn’t be using race as a proxy for who’s at risk and who’s going to have a hard time as a student. There are lots of African-American students who come from advantaged backgrounds. And lots of non-African-American students who come from disadvantaged backgrounds.”

Here’s more that I had emailed to the reporter:

A state university that receives federal money is prohibited from discriminating on the basis of race by both the Constitution and by Title VI of the 1964 Civil Rights Act.  The use of racial classifications is permissible only if it is “narrowly tailored” to a “compelling interest” – that is, the university must have a really, really good reason to use racial classifications, and essentially no other way to achieve that goal except by using racial classifications.  Gender classifications are a little easier to justify, but only a little.

I don’t think that the state’s purported interests here would rise to that level, and in any event I don’t see why it would have to make a program available only to black male students rather than including at-risk students of all colors (and both genders, for that matter).  And the program is not only unfair in its exclusion of non-black-male students, but also unfairly stigmatizes black male students as uniquely problematic.

Felon Voting – Finally, I should note that late last month I had this published in the Montgomery Advertiser, in response to an article about efforts in Alabama to make it easier for more felons to vote:

If you aren't willing to follow the law yourself, then you can't demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that most people who walk out of prison will be walking back in.

We don't let everyone vote because we have certain minimum, objective standards of responsibility, trustworthiness and commitment to our laws that [we] expect of people who would participate in the solemn enterprise of self-government. Children, non-citizens, the mentally incapacitated and those who have committed serious crimes against their fellow citizens don't meet those minimum requirements. Once a new leaf has been shown to have been turned over, then the right to vote can be restored – but not before.

Obama Disavows Diversity Hiring (Sort Of)

President Obama spoke at the University of Chicago law school last week about his nomination of Merrick Garland — a white male (tsk, tsk) — to the Supreme Court.  At one point, he was asked about “diversity” in this context, and the answer he gave is interesting (search for the word “diversity” to find the relevant question and answer). 

The president professed not to make judicial appointment decisions on the basis of race, ethnicity, or sex, instead insisting only on a process that ensures that all the best candidates are identified and looked at.  He said the same thing for other kinds of recruiting, hiring, and promotion, too.

What’s interesting is that this is an answer that honors the principle of colorblindness.  There’s no argument in it about favoring some to correct past discrimination, or about weighing race, ethnicity, and sex to ensure a “diversity” of outlooks. 

Now, to be sure, the president talks out of both sides of his mouth, because in the same answer he brags about the fact that he has set records for appointing racial and ethnic minorities, that “it’s important that our courts are reflective of a changing society,” and so forth.  But, again, he is professing that his decisions were made on a colorblind basis, and that no one got appointed on account of his or her skin color or what country his or her ancestors came from.

Hypocrisy is the tribute that vice pays to virtue.  It is significant that even this president is unwilling to challenge the principle that colorblindness is a virtue and that race-based decisionmaking is a vice. Too bad that this principle is violated on a daily basis by the rest of his administration.

Housing Segregation at the University of Connecticut – Center for Equal Opportunity ally Michael Meyers is taking the University of Connecticut to task for its plan to encourage racial segregation in dorm-room assignments there (as has CEO itself). 

A Happy GVR Thought -- There are a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon. 

The first, Shea v. Kerry, challenges racial preferences in employment at the State Department. The second, Dunnet Bay Construction Co. v. Blankenhorn, challenges racial preferences in government contracting. Review in the latter is important because of, among other things, conflicts in the way the courts of appeals have handled similar cases.  Review in the former is likewise important because the Court’s two pro-employment-preference decisions are dated, dubious, and in tension with later Court rulings — and because such politically correct discrimination is nonetheless commonplace. 
So both cases are worthy, but it will take five votes to overturn the pro-preference decisions below. With Justice Scalia’s death, that is less likely unless and until someone with something close to his judicial philosophy is appointed as the ninth justice. And that’s likely a year away.
But here’s a thought: The Court will be ruling at some point in the next few months, for a second time, in Fisher v. University of Texas – Austin. In that decision, the justices are likely to say something of interest about the right way to approach racial preference cases generally (indeed, the briefing in Shea and Dunnet Bay discusses Fisher I). So perhaps the Court plans to hold the two pending cases until after it has issued its decision in Fisher II, and then send both cases back to their respective courts of appeals — “grant, vacate, and remand” in light of Fisher II, to use the Court’s parlance — for them to reconsider in light of what will likely be an important new precedent.

That would keep these two worthy cases alive, and also avoid the futility of having them briefed and argued at a time when, realistically, all that will likely result is an inconclusive 4-4 affirmance.

By the way, the Center for Equal Opportunity helped write and joined amicus briefs in both cases.

The Nanny State, Literally -- It might have a dubious record of success with ISIS, the economy, and any number of other issues, but the Obama administration is going to save us from gender-biased toys, thank heavens. 

Simple Question Re: Evenwel v. Abbott -- By a vote of 8–0 last week in Evenwel v. Abbott, the Supreme Court ruled that Texas is permitted to use total population numbers in its districting, rather than having to use voter population instead.  This was disappointing to many Republicans, since the former tends to favor urban areas (which are generally more likely to vote Democratic).   But what I want to do here is not to comment on the rightness or wrongness of that ruling, but to ask whether — had the shoe been on the other foot — there is any matter in which the Court’s Democrat-appointed justices would have voted against their party’s interests?

The answer, of course, is no — and that’s why, if we are to have any hope of pretending to be a country that follows the rule of law, we have to hope that the next justice is appointed by a president who understands the rule of law, too.

Fisher v. University of Texas Wrap-Up – Whew!

UT President Bill Powers speaks with media after U.S. Supreme Court hearing.Photo: Paul Fetters.

It’s been a busy last couple of weeks for us here at the Center for Equal Opportunity, with the oral argument before the Supreme Court in Fisher v. University of Texas and all the media coverage before and after.  In our email this week, I’ll be focusing on some of what we’ve written — most of what you’ll read below is “truth squad” work that first appeared on National Review Online — and said about the case, which involves a challenge to that school’s use of racial and ethnic preferences in undergraduate admissions.

A Vehement Agreement with Chief Justice Roberts -- At the oral argument in Fisher, Chief Justice Roberts asked the school’s lawyer — who was defending the use of racial preferences in order to achieve the educational benefits (for white and Asian American students) that supposedly result from a diverse student body (that also includes black and Latino students) — this line of questions:  “[W]hat unique perspective does a minority student bring to a physics class? . . . [W]hat are the benefits of diversity in that situation?”

That is, Chief Justice Roberts, a skeptic when it comes to weighing race in university admissions, was implying that a prospective student’s skin color, and the background and perspectives that a student might be presumed to have because of that skin color, should not matter because it is irrelevant — that the only things that should matter are nonracial criteria that tell us whether the student is eager and able to learn about physics.

So soon thereafter the New York Times published an op-ed by a black physicist who is really upset with Chief Justice Roberts. And the reason she is really upset is that she thinks that it is wrong to ask students about race, wrong to ask them what unique perspective their race might give them, wrong to ask them about anything except whether they are eager and able to learn about physics, and wrong to view black students as having the function of enriching the learning experience of white students.

This is almost funny, this failure to see that Chief Justice Roberts and the black physicist are really saying the same things.  Except that the reason for this blindness is that the Times and other liberals, and of course the op-ed’s author, really equate the opposition of racial preferences to opposition to the admission of black students. 

Oh, and by the way, the op-ed’s author is also the proud graduate of Norfolk State University — a historically black school to which she was, therefore, not admitted because of a racial preference, and where she was therefore more likely to succeed in her goal of graduating with a degree in a STEM field. Just ask Justice Scalia, whose question about academic “mismatch” caused such a furor, as discussed below.

Trump/Scalia Question for the Other Candidates --  Also soon after the oral argument, Donald Trump joined the liberal chorus in criticizing Justice Scalia’s line of questioning in Fisher. Justice Scalia was raising, albeit a bit inartfully, the problem of “mismatch” when such preferences are used: Students who are admitted with substantially lower academic qualifications than the rest of the student body’s are likely to struggle and flunk out, drop out, switch majors (especially from a STEM discipline to a non-STEM one), or get lower grades.  So we might expect a question like this for one of the other candidates, followed by my suggested answer:

Q: Do you agree with Donald Trump that Justice Scalia was wrong in suggesting that black students should go to lesser schools because they aren’t smart enough to keep up with white students, or are you in favor of affirmative action?

A: Wow, what a question — I feel like I’m back on CNBC.  Look, I think the point that Justice Scalia was making is that any student, of whatever color, who is admitted to a school with significantly lower academic qualifications than the other students’ is likely to have a tough time. There’s a lot of data supporting the existence of this problem at schools that use racial preferences in admissions. So it’s a mistake to have racial double standards, and I’m confident in the ability of African-American students to meet the same standards that other students are held to. 

By the way, this is just one of many problems that result when schools discriminate on the basis of skin color or what country someone’s ancestors come from in deciding who gets in and who doesn’t. It’s fundamentally unfair — and it’s not just white kids that are being discriminated against, by the way, but Asian-American kids more and more, too. Plus it creates resentment, and it reinforces racial stereotypes, and schools have to decide how many of these boxes they should have and which student goes into which box — the list goes on and on.  

I’m against this sort of “affirmative action,” and I think most Americans agree with me.

“Why ‘Mismatch’ Is Relevant in Fisher v. Texas” -- That’s the title of this commentary by Richard Sander, the leading researcher in the area of racial preferences and academic “mismatch.”  It’s a terrific piece, because it usefully summarizes the three kinds of mismatch effects, and provides updates on the increasing academic support for the existence of this problem. 

The third kind of mismatch effect if of particular relevance in light of the recent campus protests:

The third type of mismatch—“social mismatch”—is in some ways the most intriguing.

Several studieshave now found that college students are much more likely to form friendships with students who have similar levels of academic preparation or performance at college. The phenomenon operates even within racial groups, but when a college’s preferences are highly correlated with race (as they are at many elite schools), social mismatch can lead to self-segregation by blacks and/or Hispanics. 

The result is decreasing social interaction across racial lines. That’s particularly relevant to the Supreme Court’s deliberations because its tolerance of racial preferences has been based on the idea that a diverse racial campus promotes interracial contact and learning. But if preferences promote substantial social mismatch, then race-conscious admissions actually decrease interracial contact and learning — not only at the school where the preferences are used, but also at the college that the preferenced minority student would have attended in the absence of preferences.

Professor Sander concludes:

All of this should give the Supreme Court pause in assessing racial preferences. Past Court decisions have invoked a traditional deference to the independence of educational institutions. But colleges and universities have demonstrated that they are politically incapable of acting as good fiduciaries for their most vulnerable students.

Social-Science Claptrap -- The New York Times had on op-ed on the day of the oral argument in Fisher by a couple of social scientists purporting to provide evidence that “Diversity Makes You Brighter.”  The “evidence” is a series of experiments where some people had to make calculations in racially homogenous settings and others made calculations in racially diverse settings. And it turns out that the latter’s “answers were 58 percent more accurate.”

Three observations, assuming for the sake of argument that the study’s methodology is sound, that its results can be extrapolated in the way the authors would like, etc.: (1) There’s no reason to think that the same results might not obtain if the “diversity” was of a sort other than racial.  (2) This experiment provides no help to the University of Texas in this case, since their argument is that they need more high-income blacks rather than blacks per se. (3) Would any Supreme Court decision that rests on such social-science claptrap deserve to be called “law”?

Yet Another Bad Argument for Racial Preferences -- The latest arguments I’m hearing in favor of continued racial preferences in university admissions are variations on this theme:  The campus protests show how far country has to go to achieve racial equality, and to ensure that these campus conversations continue, we must continue to ensure plenty of African American students on campus.

Responses: (1) Just because protestors say there is systematic denial of racial equality doesn’t mean that is true. (2) So these conversations are of dubious value, but in any event they need not stop just because racial preferences end, since the black  students involved can all still go to college; it’s just that instead they’ll be going to a college where their academic qualifications are on par with the other students’.  (3) Of course, if they are going to schools where they are as well qualified as the other students, they are less likely to feel marginalized and discriminated against than when they go to schools where they are struggling — and are seen by others to be struggling — because they are “mismatched.”  But (4) the last thing the Left wants is for these conversations to end, because they love racial-identity politics and continuing claims of systemic discrimination, which have a symbiotic relationship with racial preferences.

The Supreme Court could do everyone a big favor if it helped to end the racial essentialism that its blessing of racial preferences has, alas, both presumed and encouraged.

*          *          *

As for my speaking on Fisher recently, that includes my appearance in an “Intelligence Squared” debate, a Federalist Society debate, the Melissa Harris-Perry show, and a panel discussion at the Century Foundation.  And, of course, there were my usual conversations with reporters about the case, like this one.

*          *          *

But bear all this in mind, too:  This case challenging racial preferences in student admissions relies on a legal theory that the Center for Equal Opportunity developed, and before the case's first trip to the Supreme Court we joined and helped write an amicus brief with the court of appeals, were the first to flag for conservative media the opposing Obama administration brief there, and participated in a moot court for Abigail Fisher's counsel. We joined Supreme Court amicus briefs (at the cert stage and on the merits, highlighting CEO's studies), helped coordinate other amicus briefs, advised Ms. Fisher's counsel, and did extensive speaking, writing, and media "truth squad" work. After the Court's positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy's opinion. Last summer, when a lower court panel issued an opinion inconsistent with Justice Kennedy's opinion, we helped write and joined an amicus brief urging the full appellate court to rehear the case. This summer, the Supreme Court granted review again.

It's welcome news that the Court recognizes the continued importance of the issue of racial preferences in university admissions, and the decision to grant review is an implicit recognition that the court of appeals' decision allowing this discrimination is unpersuasive. Once again, CEO had joined and helped write an amicus brief successfully urging the Court to take the case — stressing the nonresponsiveness of universities to Fisher I that our FOIA requests had uncovered, as well as our studies documenting the continued (often increasingly) mechanical and heavy weight given race in university admission — and this fall we joined and help write another brief (discussed in a Chronicle of Higher Education article) now that the review has been granted. We are working with Ms. Fisher's lawyers, participated in a moot court, and — as discussed above— are speaking and writing about the case in the court of public opinion, and doing media "truth squad" work.

Bowdoin’s Sombrero Scandal

The horror, the horror:  Sombreros were apparently distributed during a tequila party at Bowdoin College (see Weekly Standard item here).  Needless to say, the powers of political correctness at the college are in high dudgeon.  They are being accused of overreaction — but, really, how can one overreact to this sort of vicious cultural appropriation in what is supposed to be a civilized society in the 21st century?  Off with their hats, I mean heads!

Trump and Affirmative Action – One addendum to this National Review Online post on the Michelle Fields matter:  The Breitbart reporter was asking Mr. Trump about his stance on affirmative action, and rightly so.  Despite his anti-p.c. reputation, Mr. Trump is on record this campaign as saying that he is “fine with affirmative action,” and he criticized Justice Scalia for raising the “mismatch” point at oral argument in the Fisher v. University of Texas case.

Which brings us to the issue of protestors at the Trump rallies, and a nagging question that I have.  So you’re listening to a political speech, or attending a classroom lecture, or just eating at a restaurant, and a group of protestors comes in and begins loudly chanting.  What do you do, my dear?

First, call the police (or their private-security equivalent).  Sure.  And, last, when the police have arrived and are escorting the protestors out, you don’t sucker punch one in the head.


But what do you do while waiting for the police to arrive?  I have to say that just sitting there passively does not seem satisfactory.  Shout back if you’re at a rally?  Squirt ketchup at them if you’re in a restaurant?  Probably there’s no one-size-fits-all answer.  But I’m just asking.

Four Hundred Soldiers Get “White Privilege” Briefing – Judicial Watch has obtained documents revealing that, in April 2015, 400 soldiers were subjected to a “white privilege” briefing.  This included, for example, a PowerPoint presentation instructing the attendees: “Our society attaches privilege to being white and male and heterosexual  . . .”  Quite depressing.

Update on CEO Activities So Far This Year – We’re only two-and-a-half months into the new year, and the Center for Equal Opportunity already has plenty to report.  So here goes:

We’ve helped write and joined a couple of amicus briefs at the petition stage in Supreme Court cases, one with Pacific Legal Foundation (link here) and one with Southeastern Legal Foundation (here). 

For Martin Luther King Day, I had a column on National Review Online about another of our cases (this one before a federal court of appeals).

I also testified last month before the U.S. Commission on Civil Rights regarding “environmental justice,” which is the odd notion that the victims of pollution must be racially balanced (!).  I’ve spoken in the last few weeks about Fisher v. University of Texas at UT law school, the University of Pittsburgh law school, and the Federalist Society lawyers chapter in Pittsburgh.  And I met with congressional staff last week to warn against legislative efforts to try to negate the Supreme Court’s ruling in Shelby County v. Holder by resurrecting Section 5 of the Voting Rights Act.

I’ve had plenty of other posts on National Review Online this year; my archives are here.  I’ve also been quoted in the press several times on various topics:  UT's plan to pick top leaders draws flak (Mineral Wells Index- 2/4/16); UConn building 'black-only' living space to promote scholarship (FOX News- 2/2/16); For Black Men (Inside Higher Ed- 2/2/16); Antonin Scalia’s Death Probably Won’t Affect ‘Fisher,’ but It Could Change the Future of Affirmative Action (Chronicle of Higher Education- 2/14/16); Why Is It Still So Hard for Ex-Cons to Vote in Florida? (Vice- 3/7/16); Saturday Q&A: Sizing up the Supreme Court's affirmative action case (Trib Live- 2/19/16); Many ex-felons don’t know they can get their right to vote restored (Center for Public Integrity- 2/17/16).

Our chairman, Linda Chavez, appeared last month on two Heritage Foundation panels, one on Obama’s abuse of executive power (she wrote a chapter in Liberty’s Nemesis, the book that was being featured) and one on American identity and patriotic assimilation.  And she also appeared on a National Constitution Center panel last month about that book.

Finally, let me also mention that, in 2015 and 2016, the Center for Equal Opportunity has weighed in against numerous state and local governments considering the use of racial preferences in their contracting, including:  Illinois, Macon-Bibb County (Georgia), Oregon, East Orange (New Jersey), Richland City (South Carolina), Cincinnati, Miami-Dade County (Florida), Jackson (Mississippi), Memphis, Savannah, and Chattanooga.

Dissing “Diversity”

It turns out that the corporate “celebration of diversity” is not only unfair, divisive, inefficient, illogical, immoral, and illegal — it doesn’t work very well by its own terms, according to the Harvard Business Review.

So here’s a crazy idea: How about if companies announced that from now on people were going to be judged as individuals and that nobody would be given any preference or suffer any discrimination on the basis of skin color, national origin, or sex? They could make clear that this applied to men and women, minorities and non-minorities alike. Might that possibly be a good way to advance nondiscrimination against women and minorities, but also reassure men and nonminorities that they wouldn’t be discriminated against either — just the objectives the article touts?

Affirmative Action for Air-Traffic Controllers? -- Surely I can’t be serious, right?  I’m afraid so, but fortunately our frequently ally, the Mountain States Legal Foundation, is on the case.  And don’t call me “Shirley.

MLB to Make Hiring Spanish-Language Interpreters Mandatory -- According to this Washington Post story, “Major League Baseball and the players union sent a memo to all 30 teams informing them that, beginning this 2016 season, they must hire a full-time Spanish language interpreter for players.” How about requiring English-language classes in addition to — or instead of — the interpreters?  Isn’t learning English what we would expect for any other professional who expected to spend a lot of time working here and dealing with other Americans?

FBI Physical Standards in the Fourth Circuit – Here’s an interesting article, describing a court of appeals decision that upheld an FBI special-agent requirement that men, but not women, be able to do 30 push-ups.

I have mixed feelings about this. If the point of the test is to make sure that special agents are generally physically fit, which the FBI argued and the court believed, then having different requirements for men and women makes sense. But if the point is to make sure that special agents have a certain level of physical strength so that they can beat up bad guys, then not so much. (For lawyer aficionados of Title VII of the 1964 Civil Rights Act, by the way, my offhand reaction is that the court would have been better off saying that there’s a “bona fide occupational qualification” — or “BFOQ” — justifying the “sex-norming” here.) The unanimous panel was all Democrat-appointed, by the way, and the district judge who had ruled the other way was a Reagan appointee — not that elections matter, of course.

Of course, what may be lurking in the background here is a fear by the FBI that requiring men and women to pass the same test may have a “disparate impact” on women, and as all right-thinking people know, the “disparate impact” approach to civil-rights enforcement is fundamentally unsound. It’s also possible that the FBI just wants to have politically correct numbers, and that’s also too bad — just as it’s too bad that the Obama administration is forcing the Marines to give women ground combat roles despite research demonstrating that this will make the Marines less effective there. More on that here.

Cardinals Caught Twice – The University of Louisville has gotten caught twice recently with over-the-top political correctness:  running a "whites-need-not-apply" ad for a faculty position and overtly politicizing its law school. So that's twice it has done publicly what most universities do only secretly: discriminate in hiring and run a left-wing law school. Hypocrisy is the tribute that vice pays to virtue, but more and more academics confuse the two.

Déjà Vu and the Sanders–Clinton Race/Crime Exchange – The discussion of race during Sunday night’s debate, especially with regard to crime, was disturbing but not surprising, following as it did the standard leftist script — and since the two candidates said pretty much the same things they had said before, and which I have commented on before.
So, just briefly:  Senator Sanders bemoaned a “broken criminal-justice system,” “institutional racism,” and the way that police routinely “terrorize” and “bully” black people. Secretary Clinton repeatedly called for an end to “mass incarceration” and “systemic racism” (seeing the latter not only in the criminal justice system but in health care and all kinds of other places, too).  And Sanders again added that police departments must look like their communities (quotas, anyone?).

And, once more, the dog that didn’t bark is that there was no mention of the fact that 71 percent of African Americans are born out of wedlock, and it is the implosion of the black family that is most to blame for the continuing (and in many cases growing) racial disparities in this country — in crime, poverty, unemployment, substance abuse, and so on. The simple fact is that imprisonment rates reflect crime rates, and to characterize our police and prosecutors as systematically racist is false, divisive, and demagogic, and a call for less aggressive policing is the last thing that law-abiding people in high-crime areas want.

Fearless Predictions on How Racial Preferences Will End

Loyal supporters of the Center for Equal Opportunity know that we don’t like racial preferences in university admissions (a.k.a. “affirmative action”). For example, they can read here and here how I’ve urged the Supreme Court to rule in Fisher v. University of Texas, where we have played a leading role and in which that practice is challenged.  They should also make generous year-end donations to the Center for Equal Opportunity, because I’m pretty sure the Supreme Court has already mandated that.

This week, however, rather than discuss what the Court should do, I thought I would discuss in broad terms how this issue will play out by giving straight answers and making fearless predictions on a series of questions that are critical to that discussion. Here we go.

How will the Fisher litigation end? The University of Texas will lose. A majority of the Supreme Court will vote against the university, and there won’t be a remand. The decision will be broad enough to make it harder for higher education institutions to continue the use of racial preferences, but alas, it will not foreclose them altogether.

All of that is tentative, of course. It’s possible that the university could win, in a couple of ways. There might be an affirmance of the Fifth Circuit’s decision upholding the institution’s use of racial preferences by an equally divided Supreme Court, if Justice Anthony M. Kennedy decides that he’s sick of the case and votes with the three liberals. (Justice Elena Kagan is recused.) Or there might be a remand for a full trial, and the university might win there, and the inevitable appeal might fail, and the Supreme Court could refuse further review.

On the other hand, it’s also possible that the Supreme Court will not only rule against UT when it hands down its decision but also overturn its unfortunate 5-4 decision in Grutter v. Bollinger in 2003 and declare that racial preferences in college and university admissions are illegal, period. That’s what I’m hoping for.

Barring that happy outcome, however, the end of the Fisher litigation will not mean the end of the struggle. So we have to ask and answer some more questions.

Will lawsuits continue even after Fisher? Of course. Two already have been filed: one against Harvard University and another against the University of North Carolina at Chapel Hill. There will probably be more.
Our side, including of course the Center for Equal Opportunity, is not going to give up. We really don’t like racial discrimination and what political correctness in all its manifestations is doing to our country.

And the outcome in Fisher cannot possibly result in insulating the use of racial preferences at other colleges and universities from legal challenges. Justice Kagan is recused, remember. The best the left can hope for is a 4-4 vote that will leave the state of the law essentially unchanged.

Who will win the presidential election in 2016? Barring my dream decision in Fisher, that’s what is really important, because it will determine the shape of the judiciary, and in particular the Supreme Court. If a Republican wins, then there’s a good chance that in a few years there will be a majority of justices willing to overturn Grutter. If Hillary Clinton wins, then an overturning of Grutter becomes much less likely for the foreseeable future, once Justices Kennedy, Antonin Scalia, and Clarence Thomas are replaced by her appointment of Justices Lani Guinier, Che Guevara, and Bill Clinton.

Fortunately, however, our next president will in fact be Marco Rubio, and he will nominate two excellent justices — replacing Justices Stephen G. Breyer and Ruth Bader Ginsburg with Justices Ted Cruz and Hans von Spakovsky — whom the Republican-controlled Senate will quickly confirm. President Rubio will also name Donald Trump as U.S. Representative to the United Nations, by the way, and will make Ben Carson surgeon general and Secretary of Health and Human Services.

Will the public ever accept racial preferences in college and university admissions? No. Of course not. Parents don’t like to see their children treated differently because of their skin color or what country their ancestors came from. That’s not going to change, no matter how unhappy that makes Lee Bollinger or his evil twin, Al Sharpton.

Will college and university officials ever voluntarily renounce racial preferences? No. I mean, are you kidding? Have you seen how these people have reacted to the student protests lately, and then you ask if they are voluntarily going to get rid of racial preferences? Sheesh, what a stupid question.

Will the political process ban racial preferences? It has in some states, and it could in other states. It’s even possible that Congress could ban them — but that would take a Republican president and strong Republican majorities in both houses, and a spine among Republican politicians heretofore completely lacking when it comes to this issue. So don’t hold your breath.

So, in summary, what are the possible scenarios? The use of racial preferences will end when the Supreme Court rules against them (or if the relevant political bodies ban them).

When that happens, there will still be programs that result in racial and ethnic diversity — more or less legally (by race-neutral means like top 10 percent plans, aggressive recruiting, ending legacy preferences and the like) and more or less illegally (by admission officials outright cheating or by their smuggling racial considerations into their “holistic” review of applicants). But don’t get me wrong — there will be much, much less of racial preference if it is driven completely underground in this way, so I’m all for it.

Conversely, the use of racial preferences will continue so long as courts and the political branches allow it. The academic culture is too politically correct for that to change in the foreseeable future.
At oral argument this week — in addressing the reaction to his carefully wrought opinion saying that colleges and universities had to show that they had tried really, really hard to achieve the educational benefits of diversity without using racial preferences before they could use racial preferences — Justice Kennedy lamented, “It is as if nothing happened.”

Sorry, Justice Kennedy, but that’s right, and it encapsulates a truth even broader than you might have meant: Don’t expect university officials to operate in good faith on this issue. Unless you prohibit racial preferences, their use of race will remain heavy-handed and mechanical. The only way to get the nuanced and highly individualized use of race that you (and Justice Sandra Day O’Connor before you and Justice Lewis F. Powell before her) want is to ban them outright.

It doesn’t matter how unpopular racial preferences are or how ineffective or counterproductive or unfair or stigmatizing or divisive. College and university officials don’t care.

And that’s not a fearless prediction — that’s just the way it is.