John Bennett, Newsmax, September 12, 2014

Applicants to the University of Texas (UT), among potentially many other schools, can benefit from affirmative action if English is not spoken in the applicant’s home.

This little-noticed feature of the UT admissions program was buried in last year’s Supreme Court decision, Fisher v. University of Texas. As the Fisher majority explained, students can reap the rewards of preferences for “speaking a language other than English at home.”

Several legal experts find this form of preference questionable, if not unconstitutional.

“It discourages assimilation,” Gail Heriot, a University of San Diego law professor, says. By potentially rewarding applicants from families that do not speak English precisely because they have not linguistically assimilated, the preference seems to run against the grain of the American immigration ethos.

{snip}

The non-English preference has largely escaped scrutiny, even following the recent Fisher case. As the Supreme Court majority described UT’s admissions program in Fisher, there are “special circumstances that give insight into a student’s background” such as “growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.” In addition, membership in certain specific racial minority groups can, of course, be a basis for preferences.

One aspect of the non-English language preference that has escaped notice is that the language preference could essentially be a racial preference.

Stuart Taylor, Jr., is co-author of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. Taylor says that the language preference “could of course be seen as a surrogate for racial preferences, either to give the appearance that the racial preferences are not as large as they really are or to serve as a fallback in case the courts strike down (or severely limit) the university’s use of the racial preferences.”

{snip}

Schools could easily credit applicants for being bilingual, without attaching the preference to the applicant’s home environment.

For instance, admissions policies could credit bilingual applicants on the basis of their bilingual ability, without reference to the language spoken at home. It is the explicit preference for homes where English is not spoken that raises critics’ concerns. By offering preferences on the basis of the students’ home environment, UT’s policy is in effect rewarding students from families that refuse or are unable to learn and speak English.