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Racial Preferences before the Supreme Court

Most of my work last week was related to Fisher v. University of Texas, the challenge to racial preferences in university admissions in which the Center for Equal Opportunity has played such a key role, and which was argued last Wednesday before the Supreme Court.
I did an analysis of the oral argument for ScotusBlog – you can read the whole thing here, but here’s an excerpt:


To the extent that the oral argument today highlighted internal contradictions in the Court’s jurisprudence in this area – and it did – that’s good news for those of us who would like to see an outright ban on racial preferences in university admissions.
It is in fact undeniable that the framework the Court has erected has some problems, and the oral argument illuminated some of those problems:

  • For example, if race is used too much, that makes it unconstitutional, but if it’s used little, this suggests that there’s no compelling reason for using it at all.
  • The critical mass must be measurable to some extent, or else the schools are given a blank check to discriminate, and it will never be clear when and if the schools reach the point at which preferences are unnecessary to achieve the critical mass. But if it is a precise amount, then doesn’t it become a quota?
  • If schools simply take students at their word about their race or ethnicity, then they can game the system; but if they don’t, that leads to the ugly prospect of the university establishing blood quantum requirements and then enforcing them. The fact that the University of Texas wants to have not only campuswide but also classroom diversity – a not unreasonable desire if the idea is to have plenty of interracial classroom dialogue – makes this race-policing even more cloying.
  • Likewise, there’s the problem of whether, for example, it makes sense to lump Cambodians in with Pakistanis and Filipinos in an “Asian” category.
  • If a school wants multifaceted “diversity,” then mightn’t it follow that it should give preferential treatment to wealthy African Americans, if there is a shortage of them compared to disadvantaged whites and blacks, who must therefore be disfavored?

And there’s also this problem, not mentioned at oral argument today, but noted by Justice Ginsburg in Grutter: The Court’s understandable refusal to accept quotas, point systems, and the like has the perverse effect of encouraging admission policies that lack transparency.

Contradictions like these push the Court in one of two directions. The first is simply to defer to the schools – to let them discriminate as much as they want. The second is to end the charade and just disallow the continued use of racial preferences in admissions.

I don’t think there is much doubt about which of these two alternatives a majority of the Court is likely to find more appealing.

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The day after the oral argument, the New York Post published my op-ed, which you can read here.  And, in the run-up to the oral argument, I critiqued pro-preference editorials in the Washington Post and the New York Times here, and a very dishonest op-ed by the deans of Harvard and Yale law schools here

Oh, and on the day before the oral argument I also appeared on this panel at the Cato Institute (this particular panel discussion was videotaped for C-SPAN, so you can look for it there).  Here’s a link, including to Cato’s video of the event.
A busy week!

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One last item, NOT on Fisher v. University of Texas:  I noted earlier this year that government contracting programs that weigh race and ethnicity in awarding contracts are increasingly under fire because Latinos, as well as whites, are being overtly discriminated against; I pointed to Milwaukee as the latest example. And sometimes there are squabbles among the supporters of preferential treatment over how big a piece of the pie each should get — the subject of this story in the Village Voice last week about a New York City program. In an increasingly multiracial and multiethnic society, there really can be no substitute for colorblind law.