- Published on Tuesday, 20 September 2011 14:45
- Written by Roger Clegg
In case you missed it, here’s Center for Equal Opportunity chairman Linda Chavez on The O’Reilly Factor last Friday, talking about the studies that the CEO released last week in Madison, Wisconsin, that revealed severe racial preferences in state university undergrad and law school admissions there—and talking about the thuggish reception we received in Madison.
As I said last week, the antics of our opponents backfired, and simply created more publicity for the studies, besides showing our opponents to be intellectually bankrupt. We look forward to continued work in Wisconsin to end the racial preferences there.
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Good news: A petition for a writ of certiorari was filed with the U.S. Supreme Court last week in Fisher v. University of Texas, a case that I have discussed and that challenges the use of racial and ethnic preferences in undergraduate admissions at the University of Texas. Most of the petition argues that the university’s discrimination goes way beyond what was allowed in Grutter v. Bollinger, the 2003 decision in which the Court allowed limited use of such preferences. But the last sentence in the petition reads, “If the [lower court's] reading of Grutter is correct, however, Grutter should be clarified or reconsidered to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”
Indeed, the University of Texas’s hamhanded use of race to achieve classroom-by-classroom “diversity”—to say nothing of the University of Wisconsin’s policies—shows that the Supreme Court needs to take another look at this issue. The Court may have thought it was leaving the door to racial preferences only a slightly ajar, but universities are (predictably) trying to drive a truck through it.
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There’s also good news out of the U.S. Court of Appeals for the Sixth Circuit: On September 9, the full court agreed to rehear the now infamous decision in which a three-judge panel had earlier struck down the state of Michigan’s Proposal 2. Proposal 2, in turn, is a ban on government discrimination and preference on the basis of race, ethnicity, and sex, passed by Michigan voters in 2006 in large measure because the U.S. Supreme Court in 2003 had upheld the state universities’ use of racial preferences in admissions. The Sixth Circuit panel reasoned that this ban violates the Equal Protection Clause of the U.S. Constitution.
You can’t make this stuff up, folks. That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally—without regard to race, ethnicity, or sex—in government contracting, employment, and education, including university admissions. Unbelievable.
So it’s good news that the full circuit will review the case. But there’s bad news, too: Two of the more conservative judges have recused themselves from the case. That makes it far from certain that the full Sixth Circuit will come to the right conclusion.
But wait: Here’s a bit more good news. When the Sixth Circuit granted review, it also vacated the panel decision. That means that, if there is a tie vote, then the trial court’s decision will stand, and it had upheld Proposal 2.
And here’s the last good news, and it’s more than a bit: If the Sixth Circuit gets it wrong en banc, it is very likely that the Supreme Court will grant review and reverse.
So, the news on this case will eventually be good. It’s just taking a while. And the Center for Equal Opportunity will be there every step of the way: We had joined an amicus brief successfully urging that the case be reheard, will join a brief now that it is being reheard, and will help when the case goes before the Supreme Court, if it comes to that.
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Finally, Justice Scalia has stayed the execution in a case where it is asserted that testimony was admitted that made racial generalizations about the dangerousness of certain criminals. Now, I don’t know all the facts about what was actually said in the sentencing testimony at issue in this death-penalty-for-double-murder case, and of course no legal proceeding is perfect and you can’t invalidate every sentence in which some bad testimony got in. But CEO agrees it would be a bad thing if racial generalizations were used in sentencing—just as they should not be used by the government in other contexts . . . like public university admissions.