Roger Clegg, Center for Equal Opportunity, November 27, 2013

Earlier this month, the Obama administration filed a brief with the U.S. Court of Appeals for the Fifth Circuit urging it to rule in favor of the University of Texas’s use of racial and ethnic preferences in admissions. This is the Fisher v. University of Texas case that the Supreme Court decided last summer and sent back to the Fifth Circuit, telling it that it had been too deferential–not strict enough–in the scrutiny it had given the school’s use of preferences. It’s the administration’s third brief on behalf of the school’s practice of discrimination, following earlier filings in the Supreme Court and, before that, in the Fifth Circuit, when the case was first on its way up.

The administration’s brief is predictably bad. Despite the Supreme Court’s ruling, it tries to smuggle plenty of deference into the University’s decision to discriminate in order to achieve greater and greater “diversity” (that is, more blacks and Latinos, and fewer whites and Asians). It supports the school in its desire to manipulate its ethnic numbers, not just campuswide, but on a classroom-by-classroom basis. It also supports the school in wanting to achieve higher numbers for Latinos because, well, there are more Latinos in Texas than there used to be (what Justice Powell in Bakke called “discrimination for its own sake”). And it endorses dubious social-science evidence to support these race-based outcomes, like “student surveys to determine . . . the degree to which minority students feel isolated.”

In addition, the brief assumes that racial diversity is the only way to achieve the purported “educational benefits” of student body diversity. But diversity of background, experiences, and viewpoints among students can be achieved without using skin color and national origin as a proxy for background, experience, and viewpoint – that is, without stereotyping.

Finally, there is nothing, not one word, in the brief urging the court that, in addition to these dubious benefits, perhaps some consideration should be given to the costs of racial discrimination by the University of Texas: It is personally unfair, passes over better-qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with the school, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problems underlying why so many African Americans and Latinos are academically uncompetitive; and it gets this state university involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

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Just in time for the Fisher remand, there’s yet more evidence supporting a ban on racial preferences in university admissions. I’m not sure whether the authors of this new study intended that support or not, but it does indeed bolster two of the main points made by critics of racial preferences: First, that they have a significant impact on who gets admitted; and, second, that universities will not stop using them unless they are required to do so in no uncertain terms by a law or a court ruling. Thus, the amicus brief we filed with the Supreme Court recently in Fisher v. University of Texas cited earlier studies by the Center for Equal Opportunity to show that the amount of weight given to race had not been diminished by the Grutter and Gratz decisions in 2003–that, in fact, there was evidence of more discrimination now than ever at many schools, and that the amount of discrimination was dramatic.

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