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The Supreme Court may have an opportunity to do some good soon in the fight against preferential treatment based on race and ethnicity. That’s because last Friday the petition for rehearing en banc (that is, asking the full court of appeals to rehear the case after a panel decision) was denied in Fisher v. University of Texas.

This is the case challenging the University of Texas’s use of racial and ethnic preferences in undergraduate admissions. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit had upheld the policy earlier this year, but in a fractured decision in which only one of the judges really seemed to be comfortable with what the school was doing—the other two concluding that their hands were tied by the Supreme Court’s decisions in the 2003 University of Michigan cases and/or the particular circumstances of the case given the Texas “top ten percent” law (automatically admitting any student who graduated in the top ten percent of his or her Texas public high school class). Friday’s denial of the petition for rehearing en banc was even more divided: The vote was 9-7, and among the nine were the two ambivalent panel judges. Judge Edith Jones’s dissent further tees the case up for the likely Supreme Court petition (due in mid-September), explaining how what Texas is doing goes well beyond what the Supreme Court allowed in 2003—by, for example, attempting to achieve classroom-by-classroom rather than simply campus-wide “diversity.”

Here’s hoping the Supreme Court takes the case. The Center for Equal Opportunity’s readers know that politically correct racial and ethnic discrimination shows no sign of dissipating in academia, and the justices need to step in.

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And speaking of this issue: The New York Times led its “Letters to the Editor” section this Monday with this submission from yours truly:

Re “On College Forms, a Question of Race, or Races, Can Perplex ” (“Race Remixed” series, front page, June 14):

It is very, very sad that so many universities make admission decisions based on an applicant’s skin color and what country his or her ancestors came from. Our nation’s latest census tells us that we are increasingly a multiracial, multiethnic society—and, as the article notes, more and more individuals are themselves likely to be multiracial and multiethnic. In such a society, it is untenable for our institutions to be sorting people and treating some better and others worse, depending on which silly little box is checked.

As for the complaint that some students are “gaming” this system: The real problem is that the system itself is disgustingly discriminatory.

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One more item: Last week, the Washington Post ran an article sounding the alarm about a “disparity” between the federal and national workforce percentage of Hispanic workers—that is, that the percentage of Latino workers in federal civilian jobs was less than the percentage of Latino workers in the rest of the workplace. Pointing to such “underrepresentation” is frequently the first step in arguing that there must be an affirmative action plan in place to hire more of whatever group is in question.

But the Post ignored the fact that non-citizens cannot get federal civilian jobs, and taking that fact into account explains most of the disparity, since a disproportionate number of Latinos in the United States are recent immigrants. You may also want to take a look at the first paragraph of this 2006 Government Accountability Office study : “U.S. citizenship and educational attainment had the greatest effect, of the measurable factors we identified, on Hispanic representation in the federal workforce. Our statistical model showed that when accounting for citizenship, required for most federal employment, Hispanics were nearly as likely as non-Hispanics to be employed in the federal workforce, relative to the nonfederal workforce (the portion of the CLF [civilian labor force] excluding federal employees). In addition, the federal workforce has a greater proportion of occupations that require higher levels of education than the CLF. When we compared citizens with similar levels of education, Hispanics were more likely than non-Hispanics to be employed in the federal workforce relative to the nonfederal workforce. ….”\

So, let’s not hear any calls for more affirmative action here.

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