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Fact-Checking the New York Times

The Supreme Court’s decision to grant review in Fisher v. University of Texas, a case challenging that school’s use of racial and ethnic preferences in undergraduate admissions, got front-page, next-day treatment in the New York Times. Unfortunately, the article is misleading in some important ways. No surprise: The mainstream media’s efforts to pressure the justices are under way.


The article begins with a suggestion (repeated later on) that the Court is somehow reneging on a promise that it would allow racial preferences to remain in place for 25 years. Here it is, less than nine years into that deal, and those pesky justices are back.

What Justice O’Connor wrote, in her 2003 opinion upholding law-school admissions preferences in Grutter v. Bollinger, was: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” So 25 years was just the outer limit. More than a third of that time has now passed, and it makes sense for the justices to see how things are progressing. After all, it would be most imprudent for the Court to turn a blind eye to what schools are doing for the full 25 years and then discover — well, what do you know? — that schools are still giving race an automatic weight. The Center for Equal Opportunity’s studies in fact show this to be the case, and it has already happened once before, in the 25 years between the Court’s Bakke decision in 1978 (which forbade the use of outright quotas) and the 2003 University of Michigan cases. There are good arguments that, even if the Court does not overturn Grutter, what the University of Texas is doing is in violation of it.

What’s more, the legal and demographic landscapes are constantly changing; and the empirical case for diversity’s “educational benefits” has been significantly weakened by recent studies. In particular, new data showing the mismatching of individuals and schools — i.e., demonstrating that students are accepted to schools that are too demanding for them because of affirmative action — make clear that African-American and Latino students are themselves among the casualties of racial preferences.

Finally, it was very odd in the first place for Justice O’Connor to say that a constitutional right to be free from racial discrimination would be held temporarily in abeyance.

The article states that the Court’s action “thrust affirmative action back into the public and political discourse after years in which it had mostly faded from view.” The issue is later described as “long dormant.”

Where to begin? The issue was the subject of recent ballot initiatives in Michigan (2006), Nebraska (2008), Colorado (2008), and Arizona (2010), in addition to being on the ballot this year in Oklahoma and being banned by a New Hampshire statute that became effective at the beginning of 2012. A major federal contracting affirmative-action program was struck down in 2008 by the Federal Circuit in Washington, D.C.; employment preferences were the underlying issue in the New Haven firefighters case before the Supreme Court in 2009; affirmative action in redistricting (i.e., racial gerrymandering) is a recurrent issue administratively and in the courts all over the country. And those are just a few examples.

The Times would have the justices believe that everyone was happy, and now here comes the Supreme Court, getting everyone all riled up. Nonsense. Americans have not made peace with racial discrimination, and they never will. Even the Times itself acknowledges, in the accompanying article discussed below, that the issue has remained “at the boiling point” at “dozens of universities across the nation.”

The Times also claims that getting rid of racial preferences “would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school.” That’s highly misleading, for at least two reasons.

First, while many selective schools use preferences, if preferences were abolished across the board, the students who no longer got into top-tier schools would get into second-tier schools, and the students who no longer got into second-tier schools would get into third-tier schools, and so forth. What’s more, there are many selective schools that either don’t use, or for some period of time in recent years have not used, racial admission preferences –without the sky falling. For starters, of course, there is Texas itself, and the University of Georgia, which had to eschew preferences because of a court decision. Further, preferences have been ended in Arizona, California, Michigan, Nebraska, and Washington by ballot initiatives. Florida, Iowa, and New Hampshire also do not use them. Add them all up, and around 40 percent of the population lives in states in which public universities either are not using preferences, or recently have not used them. There has been some reshuffling of students, but it is misleading to say flatly that “public universities in those states have seen a drop in minority admissions.”

By the way, that companion article is worse. It, too, begins with the lament that the Court is back, bothering the poor university community about its use of race in admissions, “just nine years after upholding it.” Practically yesterday, in other words — whatever happened to dismantling discrimination “with all deliberate speed”?

One dean of admissions is quoted: “Bright kids have no interest in homogeneity. They find it creepy.” Yes, those creepy white kids: They all look alike and, being white, they are all rich and all Republican and all Christian and all think exactly the same way and have exactly the same interests. And don’t get him started on those weird Asian kids.

Without racial preferences, says another educrat, “don’t be surprised if what you see is significant instances of segregation at some of our finest institutions.” No: Segregation involves sorting people by race, which is exactly what the opponents of racial preferences oppose.

— Roger Clegg is the president and general counsel of the Center for Equal Opportunity.