For my email this week, I thought I would share with you this lightly edited version of an op-ed that Joshua Thompson (of Pacific Legal Foundation) and I wrote for Forbes. Josh and I also wrote an amicus brief for the Supreme Court in this case.
This week, the Supreme Court will hear oral arguments in Fisher v. University of Texas at Austin, in which that school’s use of racial preferences in undergraduate admissions has been challenged.
Some may speculate that the recent protests over racial issues, at the University of Missouri and elsewhere, might deter the justices from issuing a ruling that bans or seriously limits the use of race-based admissions policies in higher education. Wouldn’t such a decision exacerbate tensions at the campuses?
In fact, the recent turmoil only strengthens the argument for calling a halt, once and for all, to discriminatory practices that focus on students’ skin color and treat them differently on that basis.
Admission preferences and the relentless pursuit of skin color “diversity” for students and faculty have added heavily to the racialization of our campuses. Students are told that their racial identity is an important part of who they are: important enough to play a significant role in who gets in and who doesn’t, who gets a scholarship and who doesn’t, who gets a graduate school fellowship and who doesn’t and — down the road — who gets hired to teach other students and who doesn’t.
It is no surprise to see calls for more “diversity” — even outright quotas — among the lists of student demands. Students have been instructed to view each other and their perspectives through a racial lens, and that unless there is a “critical mass” of their group on campus, then they can expect to feel intimidated. A black senior at the University of Missouri told the New York Times, “It can be exhausting when people are making assumptions about you based on your skin color . . . . It can be exhausting feeling like you’re speaking for your entire race.”
The Court would be doing a good thing if it took these issues off the table, if it made it clear that racial spoils cannot be asked for — because they are unconstitutional.
Such a ruling would not be judicial activism: To the contrary, the Court would simply be returning to the language of the Constitution and the civil-rights laws, which it should never have distorted, in allowing racial preferences in the first place. (Incidentally, if the protestors succeed in shutting down free speech, they defeat the purpose of Court-approved “diversity”: namely, exposure to a variety of viewpoints.)
There’s more. One of the byproducts of racial admission preferences is the “mismatch” problem: African American students, in particular, are admitted with significantly lower qualifications than white and Asian American students.
As UCLA Law School Professor Richard Sander wrote in an amicus brief the first time the Fisher case reached the Supreme Court, in 2012:
[A]mong freshmen entering the University of Texas at Austin in 2009 who were admitted outside the top-ten-percent system, the mean SAT score (on a scale of 2400) of Asians was a staggering 467 points above (and the mean score of whites was 390 points above) the mean black score. In percentile terms, these Asians scored at the 93rd percentile of 2009 SAT takers nationwide, whites at the 89th percentile, Hispanics at the 80th percentile, and blacks at the 52nd percentile.
Many who are admitted under relaxed standards struggle academically, often flunking out, or earning lower grades, or being forced to switch to a less prestigious and remunerative major. And they look around and see that the other struggling students disproportionately share their skin color.
It is likely that the resulting isolation, self-segregation, and resentment encourage what Paul Mirengoff has aptly called “militant black fragility.” It is easier psychologically and socially to blame and protest against “structural racism” and “white privilege” and an “unwelcoming” campus climate than to admit the fact that one is academically less qualified than one’s classmates.
The tragedy is that these students would have been more successful — might indeed have been academic stars — if they had gone to schools where their academic qualifications were on par with everyone else’s.
So here again, the Court would be doing everyone a big favor if it ended the mismatch problem and its myriad bad effects.
One last point, also related to recent headlines. The campus protests were pushed off the front page by the ISIS murders in Paris, which in turn immediately led to some second thoughts about our accepting large numbers of Syrian refugees, and to doubts about Europe’s assimilation of Muslim immigrants. And this suggests another reason why the Court should end preferential treatment on the basis of race and ethnicity.
America is increasingly a multiracial and multiethnic country. In such a country, it is untenable for our institutions and laws to divide Americans according to skin color and what country their ancestors came from, and treat some better and some worse based on which silly little box they check.
It is no longer 1965 and a matter of giving a preference to an African American who last year lived under a Jim Crow system. In 2015, universities are choosing among Latinos (who passed blacks for our largest ethnic minority years ago), Asian Americans (our fastest growing racial group), and Arab Americans, as well blacks, whites and Native Americans.
Anything that balkanizes Americans is a bad thing. Rather than deliberately dividing Americans, our policies should be aggressively treating everyone the same, and encouraging assimilation to American values.
We should return to the original principle of E pluribus unum. We are all Americans, and we should all be treated without regard to ancestry.
We should all be held to the same standards, and those standards should be high — and not ignored for some groups or lowered for all in order to avoid a “disparate impact” on some. There is nothing wrong with merit, and nothing wrong with patriotic assimilation.
