Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Mon12182017

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Fisher Fissures

Last week, the New York Times’s Linda Greenhouse predictably praised the recent court of appeals decision upholding the University of Texas’s use of racial and ethnic preferences in admissions.  The Washington Post has now followed suit.  But as I noted in response to both: 

“The court’s analytical framework is obviously wrong: The purported educational benefits of adding racial preferences … were not demonstrated, and there was no discussion at all of the costs of such discrimination. The alleged benefits are dubious and trivial, while the costs are many, heavy, and undeniable. To give just one example of the latter: Despite all the attention lately that has been given to the well-documented problem of mismatching students and schools — setting the ‘beneficiaries’ of racial preferences up for failure — there is not a word about it in the court’s opinion.”

I also cannot let pass Ms. Greenhouse’s casual and false reference in her piece to “the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture.” Commonly, yes — but not marginally. As studies from conservative — including, most prominently, the Center for Equal Opportunity — centrist, and liberal scholars have all confirmed, race is weighed very heavily indeed in university admissions.  

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Despite Ms. Greenhouse et al., however, those of us who oppose racial preferences in university admissions have gained some unlikely allies of late.

Here are two thematically similar pieces, both worth a read:  first, from that very same New York Times, “If Affirmative Action Is Doomed, What Next?” by David Leonhardt; and, second, from the equally left-of-center Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action” by Richard D. Kahlenberg.  Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new books on the alternatives, Place Not Race by Sheryll Cashin and The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

The Chronicle of Higher Education also recently published its annual “Special Report:  Diversity in Academe,” and  at least three pieces offered more or less direct support for getting rid of racial and ethnic preferences (of course, probably they all provide indirect support for it, one way or another).  There’s an excerpt from Sheryll Cashin’s above-mentioned new book, Place Not Race, which argues that preferences should be based on socioeconomic status rather than skin color. There is also a Latina student who doesn’t like being labeled “underprivileged” just because of her ethnicity.

And there is an article by a mixed-white-and-Asian academic who has decided he will now check the “white” box instead of the “Asian” box, because Asians in his department are no longer considered “underrepresented” and are, in fact, probably now considered to have met their quota. Now, this professor is, I suspect, not yet at the point where he will be tithing to the Center for Equal Opportunity, but the realization that some nonwhites are getting discriminated against in the name of “diversity” has certainly got him thinking.  (Silliest line in his piece:  “A white colleague remarked that no one seems to complain that we have too many white faculty members when we add to their numbers.”  Uh huh.)

One other thing:  As I’ve often noted, just because it is, alas, legal to use racial and ethnic preferences in choosing students does not mean it is legal to use racial and ethnic preferences in selecting faculty. The fact is, the applicable statutes are different, and the federal courts have never recognized (and some have rejected) the notion of a “diversity” defense for employment discrimination.

Here’s another unlikely ally:  Janet Napolitano, now head of the University of California system, is not happy with the constraints — set out by the voters of California, an approach recently upheld by the Supreme Court in Schuette v. BAMN — she must face in discriminating among student applicants on the basis of their skin color and what country their ancestors came from. Her Washington Post op-ed recently is illogical and dishonest in predictable ways — mischaracterizing the state’s ban on racial preferences; ignoring the costs of such discrimination and overstating the benefits; etc. — but she grudgingly admits that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forego racial and ethnic discrimination, too — since the Supreme Court’s Fisher decision last summer made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity. So, Janet, even if you’re not happy, we’re happy that you wrote!

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Here’s some more antipreference ammunition, and again it’s not from where you might expect it:  “For the first time, the number of Latinos from California offered freshman admission to the University of California was larger than that for whites,” reports the Los Angeles Times, in a recent article about the latest University of California admissions figures.  But they aren’t 1-2, they are 2-3, because Asian Americans remain number one.  While some might see a historical sense in which favoring blacks over whites might be justified, what happens when most of the preferences are going to Latinos over Asians, as is increasingly the case?  Well, as always, the future is now in California — or would be if racial preferences were allowed there. 

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But let’s end with something from a more consistent ally.

Justice Scalia began his concurring opinion in Schuette v. BAMN this spring by writing that, in that case, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” And he’s right that the Fourteenth Amendment and the Michigan ballot initiative at issue in Schuette each bars racial and ethnic discrimination in university admissions.

But the juxtaposition is even more “frighteningly bizarre” when we place side-by-side the text of the Michigan Civil Rights Initiative (which covers public university admissions, among other things) and Title VI of the federal 1964 Civil Rights Act (which covers public university admissions, among other things).

Here’s the language of the MCRI:  Public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” And here’s the language of Title VI of the 1964 CRA: “No person in the United States shall, on the ground of race, color, or national origin, be … be subjected to discrimination” by a public university.

Putting sex aside, which is admittedly odd in the university context, to say that the two prohibitions are not identical requires one to argue that you can give a “preference” to some racial/ethnic groups without “discriminating” against the other racial/ethnic groups. Well, that’s silly, although of course there is no doubt that the Left would so argue if this were all there was between it and preserving racial discrimination, I mean preference.

The reason that courts apply the Equal Protection Clause rather than Title VI these days, by the way, is that a majority of the justices held in Bakke that the two are coextensive and that the former contains some wiggle room that the plain text of the latter does not. Too bad.