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.



Heriot, who is also a member of the U.S. Commission on Civil Rights, offered the following illustration: "Imagine an immigrant father who tells his family, ‘We must improve our English and speak it in the home, because we're in a new country where English is the first step to success.’ In 1914, his statement would have carried great moral authority. He would have been right. But now the answer is, ‘No, you silly old man, you'll ruin my chance to get into the University of Texas.’



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.”



Roger Clegg, president and general counsel for the Center for Equal Opportunity says of the non-English preference, “It certainly could and probably will have the effect of giving an advantage to Latino students (and probably Asian and maybe Native American students) over not only whites generally but also over blacks generally.” However, Clegg believes “the presence or absence of a racial/ethnic ‘effect’ ought to be irrelevant,” in determining whether the preference is constitutional.



“I think there is a valid reason for considering it to be a disadvantage to grow up in a home where English is not spoken,” Clegg says. Yet, he does see a possibility “that this is just a way to smuggle in additional racial/ethnic preference.”



Michael A. Olivas, a law professor at the University of Houston who helped to design part of UT’s admissions policy, took issue with critics’ argument concerning the language preference’s effect on assimilation. “I fail to see how speaking more than one language is a refusal to assimilate . . . There is a certain arrogance, quite misplaced, in assuming that speaking only English is somehow a positive trait,” according to Olivas.



When asked how early generations of immigrants, such as Europeans, would have perceived a non-English language preference in college admissions, Olivas said, “I would have applied this preference to European immigrants.”



Taylor presents a different interpretation, noting that language preferences were unfamiliar to earlier generations of immigrants, including European immigrant groups: "It's hard to be confident how it would have gone over with the European immigrants of yesterday because the whole idea of racial or language preferences for favored minorities or immigrants was unheard of. Had such preferences existed, the immigrants of yesterday would have had to weigh the benefits of assimilation against the supposed benefits of preferences."



Olivas emphasizes the importance of bilingualism, and believes it is fair to credit college applicants for not speaking English at home. “In our stubbornly monolingual society — at least with regard to many Anglos and others who have been in the country for many years — it is unusual to be bilingual.”



As professor Heriot pointed out, past generations of immigrants would have pushed their children to learn English: “‘We must improve our English and speak it in the home, because we're in a new country where English is the first step to success.’”



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.



John Bennett is a writer whose work has appeared in The Daily Caller, Townhall.com, American Thinker, Human Events, Liberty Unyielding, Accuracy in Media, and FrontPage Magazine, among others. He has appeared as a featured guest on the Laura Ingraham, Jerry Doyle, and Lars Larson programs.





























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