Big year coming up for racial preferences at the Supreme Court

Not only will the Supreme Court be taking on the issue of racial and ethnic preferences in university admissions this fall when it hears Fisher v. University of Texas, but it may well be hearing important civil-rights cases involving voting and housing, too.

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Washington's Finest Moment

For all the talk of incivility in the Nation's capital, the last week has restored my faith in the basic decency of the people who live there. Although the storm that hit Washington and the surrounding area June 29 has not received as much national attention as hurricanes, tornados, and other natural disasters usually do, the human toll has been high. In the Washington metro area alone, five people died in the storm and more than 20 have died subsequently from the heat, as hundreds of thousands suffered days without electrical power. But through it all, most people have behaved admirably.

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A Humanitarian Crisis That Can Be Solved

For a group of 4,000 Iranian refugees currently living in Iraq, a United Nations report this week could prove crucial in determining whether they will live as virtual prisoners in the desert or be able to build new lives in freedom elsewhere. The refugees are members of a controversial Iranian dissident group, the Mujahedeen-e-Khalk (MEK), which is currently listed on the U.S. Foreign Terrorist Organizations list. That listing itself is controversial. The United Kingdom, the European Union and a number of other nations have removed the group from their lists of terrorist organizations, and the U.S. may soon be forced to do so as well. A successful suit by the MEK resulted in a recent order from the U.S. Court of Appeals for the District of Columbia Circuit requiring Secretary of State Hillary Clinton either to delist the group or produce evidence that the organization remains a current and credible threat to American interests. But until the issue is resolved, the fate of the MEK members living in Iraq remains precarious.

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White Privilege

The University of Minnesota–Duluth has launched a bizarre campaign to raise awareness of “white privilege.”  The accompanying video has to be seen to be believed.  This is white guilt on steroids:  You have to be living in a different world if you believe that people who happen to have white skin (and who may or may not have had an easy time of it in life) ought to feel apologetic to anyone who does not share that skin color (and who may or may not have had a hard time in life).  Oh, well.

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Do the Right Thing

Former FBI Director Louis Freeh has now issued his final report on the scandal at Penn State University, but the question remains: How could so many decent people fail to act when presented with an eyewitness account of sexual abuse of a child?

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Silver Lining in Court Decisions

The U.S. Supreme Court handed down two decisions this week that cry out for Congressional action. In upholding the constitutionality of most aspects of President Obama's health care reform legislation and in reaffirming the federal government's role in immigration policy, the Court's decisions should be a call to action for Congress to pass new legislation on these two vital issues.

It's important to recognize that the decisions were narrowly tailored to deal only with constitutionality of the two laws at issue: the federal Affordable Care Act and Arizona's S.B. 1070. Neither decision spoke to the wisdom of existing policy in either area. In fact, both health care and immigration laws are in desperate need of major revisions.

The health care decision, announced Thursday, affirmed the constitutionality of the major provisions of the law. While striking down one provision having to do with Medicaid, the Court upheld the most controversial part of the law, which mandates that individuals buy health insurance or pay a penalty to the federal government.

Five of the justices, including Chief Justice Roberts and the other four conservatives on the Court, said that the Commerce Clause could not be read to allow the federal government to require individuals to buy health insurance -- the argument advanced by the Obama administration. However, Roberts voted to uphold the law's constitutionality based on his interpretation that the federal government's taxing authority permits it to penalize those who choose not to buy insurance -- thus ensuring a 5-4 victory that in effect preserves the means to finance universal health care as envisioned by the law. In essence, the chief justice said that Obamacare is a tax imposed on those who do not wish to purchase health care.

If conservatives are smart, they will use this point to hammer home to Americans that the Obama administration has imposed a hefty tax on every American who is not covered by health insurance and has probably raised premium costs for those who already have insurance by mandating policies to cover new services. In an election season when many, if not most, Americans are feeling an economic pinch, this could be a huge problem for the president. And especially so because the president has consistently maintained that his health care bill was not a tax, nor would it raise the costs of health care. Republicans in Congress should use the opportunity to offer bills to repeal this regressive tax.

The other important decision handed down this week had to do with the power of states to impose their own sets of rules and penalties with regard to illegal immigration. While many conservatives are upset that the Court struck down key provisions of Arizona's tough anti-illegal immigration law, SB 1070, they should be more angry at Congress for failing to pass legal immigration reform that would end up to 90 percent of illegal immigration by expanding legal immigration and temporary work visas. But instead of adhering to their basic understanding of free market principles when it comes to immigration policy, many conservatives have jumped on the bandwagon of intrusive big government to solve immigration problems.

There is no question that Americans have a right to be concerned about border security and the large number of illegal immigrants that are living in the United States. But the solution is not for states to try to impose their own versions of immigration law -- which are the exclusive provenance of the federal government -- but for Americans to push Congress to act on meaningful changes to our immigration laws. The answer to combatting illegal immigration is to base legal immigration laws on the country's economic needs and to make it flexible. The best policy would be to increase immigration when there is high employer demand and not enough domestic workers to fill the need, and decrease it when there supply exceeds demand.

Unfortunately, those on both sides who have dominated the debate in the last few years have been hostile to a free market approach. Liberals favor higher immigration under all circumstances, motivated in large part by their desire to enlarge their own constituency, which they believe will happen naturally if more immigrants from Latin American countries come.
Just as problematic, many conservatives who oppose expanding legal immigration have lost faith in the ability of the United States to assimilate new immigrants, despite overwhelming evidence that current immigrants -- including Latinos -- are assimilating at rates that are as high or higher than previous immigrants from Europe. Instead of adhering to basic conservative principles, these anti-immigration conservatives end up favoring bigger government to patrol our borders and increased regulations for everyone who wants to work in the U.S, including American citizens. We've tried these methods now for more than twenty years, and they haven't done the job.

The Supreme Court's ruling on immigration should motivate conservatives to demand genuine immigration reform at the federal level -- but most importantly, reform that preserves conservative principles on individual liberty and the free market.

When it comes to both decisions this week, conservatives need to follow their own advice: don't rely on the Courts to fix policies that have gone astray.

An Obamacare silver lining

Many conservatives were unhappy with the Supreme Court’s failure to strike down Obamacare, but here’s a silver lining:  The Left and the Mainstream Media had been doomsaying all year about how the Roberts Court was going to be willy-nilly striking down laws and upsetting legal precedent in pursuit of some far-right agenda.  Well, that didn’t happen.  So next term, when the Court hears Fisher v. University of Texas, raising the issue of racial preferences in university admissions, it will be much easier now for the Court to do the right thing and put an end to this nonsense.  (And, no, I don’t think that Chief Justice Roberts’s vote in Obamacare bodes ill for his vote in Fisher.)

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Racial preferences are bad for the body politic

With everyone waiting for the Supreme Court’s decision in the Obamacare case, I coauthored a piece in the Christian Science Monitor last week that explained why a case that will be decided next year also has important health implications – but, in its case, it’s the health of the country’s race relations that is at stake.  You can read the whole piece here, but here are some excerpts:

The U.S. Supreme Court will soon decide one of the most consequential cases in years – the challenge to the new federal health care law, often known as Obamacare.

But right behind it comes another blockbuster case.

Next term the Court will hear Fisher v. University of Texas at Austin. Health is still the issue – but this time, it’s the health of our multiracial society. Will the public sector – and public universities in particular – finally move beyond a fixation with race, and start treating all people as individuals, not color-coded statistics?

At UT-Austin, admissions directors favor the race-based spreadsheet approach. Race is a criterion in undergraduate admissions – with favoritism for African-Americans and Hispanics – in an effort to achieve a pre-determined mix, or “diversity.” Abigail Fisher, a white female, was denied admission, and she’s suing because she was not evaluated on an equal basis with applicants from other backgrounds.

The Court was correct to take this case. It needs to clarify, once and for all, whether the need for “diversity” justifies universities treating individuals differently because of their race.

When the Court last considered this issue, in a pair of University of Michigan cases in 2003, it struck down racial preferences in one case but narrowly upheld them in the other. In the latter, Justice Sandra Day O’Connor warned, “We expect that 25 years from now, the use of racial preferences will no longer be necessary...”

So the Court was – rather oddly, to be sure – announcing only a temporary waiver of students’ right not to be discriminated against on the basis of skin color and what country their ancestors came from. Since a third of the time allowed for in Justice O’Connor’s projection has passed, it makes sense for the Court to revisit the matter.

Studies provide ample evidence that universities are not weaning themselves away from this discrimination. To the contrary: A study last fall of the University of Wisconsin by the Center for Equal Opportunity found the most pronounced undergraduate admissions discrimination the Center had ever seen. Recent studies show that law school discrimination at UW and elsewhere is severe, too. Studies of medical school admissions have reached the same conclusion.

At one time, affirmative action was designed to benefit African Americans recently subjected to Jim Crow, over whites who had been the segregated system’s beneficiaries. But now, more and more, it is Asians (our fastest growing ethnic group) who are discriminated against in favor of Latinos (our largest minority). At the University of Texas, for instance, in 2009, admitted Asians had an average SAT score 197 points higher than the average score for admitted Hispanics.
What’s the historical justification for that difference?

As for the “diversity” rationale, it is becoming more and more problematic to justify using race and ethnicity as a proxy for people’s perspectives and experiences – or to identify students from disadvantaged backgrounds. There are of course many white and Asian students who come from disadvantaged backgrounds, and many African Americans and Latinos who do not.

In fact, a frequently cited pro-racial preference book – The Shape of the River by William G. Bowen and Derek Bok – acknowledged that 86 percent of the African American students admitted to the schools it surveyed (selective colleges and universities using affirmative action) had “middle” or “high” socioeconomic status. Only 14 percent came from “low” socioeconomic backgrounds.

Even if there are some marginal educational benefits for students from greater “diversity,” they are few and thin compared to the substantial costs – costs, that is, from institutionalizing racial discrimination that must be borne by society as a whole, the universities, and the students themselves.
For example, empirical evidence has come to light that among the victims of admission preferences for blacks and Latinos are ... blacks and Latinos. That is, by mismatching students and institutions, students are set up for failure. A study by UCLA Law School Professor Richard Sander found there would be more African Americans in the legal profession if affirmative action weren’t routing students to schools that aren’t a good academic fit – and from which, too often, they don’t graduate.

The use of racial preferences is simply wrong, for a host of reasons, including: It is personally unfair; it can stigmatize the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it compromises the academic mission of the university; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and how to establish group membership.

The face of America is changing, and it is untenable to be sorting Americans by skin color in a nation that is becoming more and more multiracial and multiethnic.

The justifications for such discrimination have grown weaker, and the costs more apparent. The Supreme Court should rule in favor of Abigail Fisher and tell universities that they must stop judging applicants by the color of their skin and their national origin: The nation’s long-term health demands it.