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Act Now To End Racial Preferences

Like a bad penny, cases involving race keep turning up before the Supreme Court, largely because the court won't definitively make up its mind how much racial discrimination it favors. Since 1978, when the court decided race could be a factor in college admissions as long as it promoted greater racial diversity, racial preferences have become ingrained in society, from college admissions to hiring decisions and promotions to government contracting.

But racial preferences still grate against a sense of right and wrong for most people, which is why cases continue to work their way back up before the court. In July, the court punted on the issue in a challenge to Texas' college admissions policy by sending the case back to the lower court. This week, the court heard arguments on whether Michigan voters violated the U.S. Constitution by forbidding state colleges from using race as a factor in deciding which students to admit.

In a ballot referendum in 2006 known as Proposal 2, 58 percent of voters approved an amendment to Michigan's constitution banning consideration of race in college admissions, state employment and government contracting. At the time of its adoption, black and Latino students received substantial preference in admission to the state's most competitive campuses. According to studies by my Center for Equal Opportunity, black applicants with the same test scores as white or Asian students were as much as 70 times more likely to be admitted to the University of Michigan at Ann Arbor as undergraduates and 36 times more likely to be admitted to the law school prior to adoption of Proposal 2.

Ironically, the whole reason the initiative came to be on the ballot was because in 2003, the Supreme Court upheld preferential admissions at the University of Michigan Law School, while striking down the university's undergraduate affirmative action plan as too rigid. The only alternative left to those who opposed the school's preferential policies was to amend the state constitution. Now, having lost at the ballot box, proponents of preferential admissions are back at the Supreme Court.

Court watchers predict that, once again, the court may find a way to duck the big issue. Given the court's composition, it is unlikely that opponents of Proposal 2 will see it struck down on constitutional grounds. But the court could do what it did with the Texas case: decide it on the narrowest legal grounds, which would leave the ban against racial preferences in Michigan in place but would not settle the larger question of why government should ever be permitted to use race in discriminating against or granting preference to anyone.

Judging people by the color of their skin is never benign. It is never a good thing to say that race defines the person, for better or worse. When government allots benefits to some based on race, it necessarily means that government discriminates against others who don't share those racial characteristics. It was wrong when government behaved in this fashion for more than 200 years to favor whites. And it is no less wrong when government does it today to disadvantage whites -- and, importantly, Asians, who faced discrimination under the old system and still face it in most affirmative action plans.

In those states that have banned racial preferences, black and Latino students are doing just fine. In fact, in California, which banned preferences in 1996, not only have the numbers of black and Latino students attending the prestigious UC system increased, but they are graduating at rates 20 to 25 percent higher and have better grades than they did prior to the ban.

We are supposed to have progressed to the point that skin color doesn't matter. Wasn't that the whole point of the civil rights movement of the 1950s and '60s? So why is it that we still allow life-altering decisions to be made on the basis of race?

Unless the court decides the Michigan case broadly and decisively -- upholding the state ban on preferences and deciding that government should never use race to pick winners and losers -- this issue will continue to divide America. The time to end racial discrimination is long overdue. The court must act now.

Two Wins for CEO in the Supreme Court!

Last week the Supreme Court handed down decisions in Fisher v. University of Texas and Shelby County v. Holder.  The Center for Equal Opportunity helped write and file briefs in both cases, and in both cases the Court’s rulings vindicated our arguments, as discussed below.

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Lawyers on both sides of Fisher v. University of Texas at Austin are claiming victory, and there’s some logic to that: The big winners are lawyers generally. The takeaway from the Supreme Court’s ruling last week is that universities using racial preferences can expect more and tougher—stricter—scrutiny, to be hauled into court more frequently, and to have a harder time prevailing when they are.


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:


Consensus on Race in the High Court

The Supreme Court waited until its last week in session to hand down three of its most controversial decisions: two involving race and a third involving gay marriage. While the court delivered closely split decisions on two of the cases, what was perhaps most surprising was the near unanimity in a case involving affirmative action at The University of Texas.

Unlike the ideological divide that continues over the issue of gay marriage and whether the most punitive provisions of the Voting Rights Act remain necessary nearly a half-century after the law was initially enacted, the justices' decision in Fisher v. University of Texas suggests they share the public's general suspicion of race-based preferences in college admissions.


Bean Counting in the Big Apple (and Elsewhere)

The City University of New York has decided to add a “White/Jewish” classification to its list of “minority” faculty categories. The full list: “African-American/black, Asian, White/Jewish,Lesbian/Gay/Bisexual/Transgender, Hispanic/Latino, Individuals withdisabilities, and Italian-American.” The move does not seem to bewell-received, according to the New York Post: “Jewish professors told The Post that marking them as Jews won’t make them the chosen people on campus — and may even shrink their ranks if Jews are found to be ‘overrepresented.’”Read all about it here.


The Pressure against Racial Preferences Builds

There’s an excellent discussion here of “Originalism and the Colorblind Constitution,” by Professor Michael Rappaport. The bottom line (quoting the abstract): “In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution.” I came to a similar conclusion here.


Bad Guidance on Racial Preferences

As the K–12 school year draws to a close, school boards and superintendents will have to decide about tweaking student assignments for the fall. As they do so, they will also have to decide how much weight to give to the Obama administration’s “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools,” which was released jointly late last year by the Education and Justice Departments.  The guidance encourages schools to consider students’ race and ethnicity in deciding who goes to which school.


Just Say NO to Racial Preferences

The New York Times must really be afraid that the Supreme Court is about to do the right thing in Fisher v. University of Texas, in which the use of racial preferences in university admissions is challenged.   It ran an op-ed two Sundays ago that discusses the pending decision and acknowledges that, despite schools’ claims that race is considered as just one among many factors, it is in fact given huge weight today. This is despite warnings from the Court already (in 1978 and 2003) that the heavy and mechanical use of race is unacceptable.


For once, the New York Times is right!

Earlier this year, the New York Times ran an editorial titled, “The Affirmative Action War Goes On.”  Well, for once it’s right:  That war does continue.