Fisher Is Back! | Center for Equal Opportunity

Supporters of the Center for Equal Opportunity know that we are playing an important role in trying to end racial preferences in university admissions across the country, and have been especially active in Abigail Fisher’s lawsuit against the University of Texas. Well, a cert petition has now been filed on behalf of Ms. Fisher by her lawyers with the Supreme Court, asking that review be granted of the latest court of appeals decision against her.

Recall that the last time around, the Supreme Court reversed the Fifth Circuit’s similar ruling; Justice Kennedy’s decision said that the court of appeals had not been strict enough in the scrutiny that it applied to the university’s use of racial preferences in admissions. This month’s petition argues that the Fifth Circuit still hasn’t gotten it right and that, indeed, its latest decision is inconsistent with what Justice Kennedy demanded.

Stay tuned.

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Of course, the New York Times’s Linda Greenhouse had to weigh in immediately, defending the use of racial preferences in university admissions. Here’s my posted response:

The thesis of [Ms. Greenhouse’s] long essay is that the Court should allow universities to continue to engage in racial discrimination, and yet there is not one word explaining why this discrimination is justified. The only justification cited by the university here is that there are “educational benefits” from student body “diversity.” What this boils down to is a claim that African American students and Latino students will say things (in or out of class) that would otherwise never have occurred to white and Asian Americans students. The “educational benefits” from these random statements are so “compelling” that they overwhelm the many, undeniable, and heavy costs of racial discrimination — the unfairness and divisiveness, the resentment and stigmatization, the mismatching that hurts the students who receive the preferential treatment, the lowering of academic standards that inevitably results when less-qualified students are admitted, and getting schools 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. It’s not worth it.

And, a bit earlier, another New York Times columnist, Charles Blow, had written a column on racial and gender disparities in the STEM area, raising similar issues. Here’s my posted response to that:

It does not follow from Mr. Blow’s column that our efforts to attract students into the STEM area should be made with an eye on race, ethnicity, and sex. If there are promising students of any background, they should all be equally encouraged to pursue that promise. But, alas, many people draw the politically correct conclusion that what’s needed is some kind of “affirmative action” in the STEM area — which is unfair to those who aren’t preferred, and counterproductive (because of “mismatch”) for those who are. More here.

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On this front, there was an interesting article in the Los Angeles Times over the weekend about discrimination against Asian Americans in university admissions. Many of those being discriminated against don’t like it — go figure.

And Richard Kahlenberg makes some good points in this piece posted by The Chronicle of Higher Education. There have been recent revelations about the University of Texas’s less-than-transparent admissions process, and Mr. Kahlenberg explains how helping less-qualified, well-off applicants get into the University of Texas is part-and-parcel of the way its racial preferences work, too. Kahlenberg concludes that, in both instances, UT’s president demands, “Give me discretion and ‘trust me’ to do what’s best. But given his record of using discretion for those who least need it, why should we?”

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Finally, this also out of Texas: One of the issues explored at oral argument last month in Texas Department of Housing and Community Affairs v. the Inclusive Communities Project was whether the defendant in the case could really be said to have done anything that actually had a “disparate impact” on racial minorities. Chief Justice Roberts grilled Solicitor General Verrilli on this point, and never did get a satisfactory answer.

Here’s the issue: The plaintiff in the case is a liberal organization that wants to promote racial integration, and it is unhappy that the Texas state agency there doesn’t distribute tax credits in a way that encourages low-income housing to be built in white areas. But mightn’t poor minorities prefer to have low-income housing built close to where they already live rather than far away?

It’s interesting, then, that this month an op-ed was published by the chairman of another Texas organization, who appears to be just as committed to helping racial minorities as the plaintiff, but complains that what’s needed is more low-income housing in minority areas, not less.

So Chief Roberts’s concern — which I had also raised prior to the oral argument, by the way — is vindicated.

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