The Court Should Grant Review (Again) in the Fisher Case

Earlier this year, the lawyers for Abigail Fisher asked the Supreme Court to grant review — again — of her lawsuit challenging the University of Texas’s use of racial and ethnic preferences in its admissions. The Court will consider whether to grant Fisher’s request at its conference on Thursday this week (May 21 — though I caution that sometimes the Court doesn’t decide immediately on what it will do).

The Center for Equal Opportunity has joined and helped write a brief filed by Pacific Legal Foundation that highlights CEO’s work in this area and that urges the Court to grant review. CEO has also discussed how Congress could act in this area. Last week I wrote about all this (along with one of PLF’s lawyers) in a column that was posted on National Review Online:

Given that universities continue to ignore the constraints on the use of racial preferences laid out by the Court’s 2013 opinion in the same case, the justices should grant Fisher’s request for review. Congress could help here, as well.

The Court’s earlier decision wasn’t everything that opponents of racial preferences hoped for, but it was a step in the right direction. It reversed an appellate court that had given broad discretion to universities to use racial preferences in admissions. The justices’ near-unanimous decision explained that such discrimination would be tolerated only if it was truly “necessary” to attain the “educational benefits” of a racially diverse student body.

Accordingly, Fisher v. University of Texas required universities to reevaluate their use of racially selective admissions policies. If the costs of racial preferences were found to outweigh the purported benefits, or if less discriminatory means could achieve similar results, the discrimination would have to stop.

In particular, recent empirical research provides strong evidence that racial preferences cause significant harm to the very students who are supposedly the beneficiaries of racial admission preferences. Academic “mismatch” begins when universities lower their academic standards to admit a more racially diverse student population. The result is a significant gap in academic qualifications between some (typically black and Latino) and other (typically white and Asian) students. This, in turn, leads to the former having significantly worse grades, higher dropout rates, and less rigorous majors, along with other significant costs. Even if some academics dispute the mismatch effect, Fisher should require that universities at least consider these costs and determine that the benefits of racial preferences outweigh them.

There is, however, no evidence that universities have undertaken this type of introspection in the wake of Fisher.

To the contrary: Last year, the Center for Equal Opportunity (CEO) sent public records requests to 22 public universities seeking information detailing how the institutions had considered the costs of their racially selective admissions policies after Fisher. In particular, CEO sought to find out how the universities had considered the mismatch effect on their students. Astonishingly, half (eleven) of those institutions responded that they had zero documents responsive to the request.

The response at the remaining eleven universities was no better. Two universities sent documents that likewise confirmed that they had failed to consider the costs of mismatch at their schools. Seven of the institutions refused to honor the request — saying it failed to meet their requirements for some reason or another. One university quoted a price for searching for the documents that was too expensive for CEO — even though CEO engaged in extensive attempts to negotiate around the cost difficulty. The last request went to the University of Texas itself, and it and CEO are still going back and forth on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars (NAS) likewise asked universities for documents confirming that they had considered the costs of racial preferences, and investigated race-neutral methods of achieving the same benefits. NAS’s requests met the same fate. Not a single university responded with documents showing they had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing they had seriously considered the costs of their racially preferential admissions policies.

Accordingly, the Supreme Court should grant review again in Fisher, and try again to write an opinion that universities will take seriously. Perhaps this time the Court will conclude that it is futile to expect schools to do anything other than try to drive a truck through a door it has left ajar. The Court should shut that door — by holding that there is no compelling interest in the use of racially discriminatory admissions in the first place.

Meanwhile, Congress could act.

When Congress passed the 1964 Civil Rights Act, Title VI provided: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Alas, this crystal-clear prohibition has been ignored by the Supreme Court, which has allowed racially discriminatory admissions.

But as long as racial preferences are allowed, Congress could at least require universities that receive federal funding to report annually whether they engage in such discrimination, and to provide evidence to show that any racial preferences they do use don’t exceed the limits imposed by the Court’s decisions.

Some insist that universities should continue to practice racial discrimination in admissions, but who can defend it being done secretly and without providing some rudimentary evidence of how it meets with the Supreme Court’s requirements? The U.S. Commission on Civil Rights has endorsed such legislation, and Representative Steve King (R., Iowa) introduced a bill nearly a decade ago along precisely these lines.

As Justice Louis Brandeis said, sunshine is “the best of disinfectants.”

If Congress were to act now, it would be interesting to hear any senator or representative — or anyone running for president, for that matter — try to explain his or her support for secret, illegal racial preferences. It would be even more interesting to hear President Obama’s justification if he vetoed such a bill.

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