Racial Preferences in Higher Education

A couple of months ago, the Supreme Court handed down its disappointing decision in Fisher v. University of Texas, and race and higher education continue to be in the news.  This past week has seen controversy over student housing ads expressing a preference of “people of color” and separate student sections in courses for minority students, and there’s been a call this week for “diversity” to be graded in school rankings by U.S. News & World Report — all bad ideas, in my humble opinion, and each showing in its own way why politically correct racial discrimination should not be part of higher education, despite the Supreme Court’s pronouncement.

Here’s what I wrote about the Fisher decision at the time in Minding the Campus.  I thought it was important to make the point that, while the decision was disappointing, the fight is not over.

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions.  The vote was 4-3, with Justice Kennedy writing the majority opinion, joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused).  Justice Alito wrote a powerful, 51-page dissent, which he read from the bench.

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains.  But the silver lining is that today’s decision is a narrow one.

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race.  Race is, the Court says, only a “factor of a factor of a factor” at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through.

So look at it this way:  Barring a decision by the Court that overruled Grutter v. Bollinger and said that schools may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of schools would continue to use such preferences, even if the Court had left the door open only a tiny crack.  If the Court had said, “You can use racial preferences only if the school can prove XYZ,” then every Ivy League president would swear that, what do you know, we have found XYZ.”  And it doesn’t matter what XYZ is.

That’s what the law was before today’s decision, and it remains what the law is after today’s decision.  Sure, it would have been better if the Court had given the opponents of racial preferences more ammunition than it did today to attack those XYZ claims, but we still have plenty of ammunition from the Court’s earlier decisions.

The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other schools, and at UT itself for that matter.  It’s interesting that in the run-up to the decision, there was much discussion even among liberals that maybe indeed there are better approaches to student admissions that UT’s.  Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s hoops have been jumped through.

So the challenges to racial preferences will continue; cases already filed against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed.  And the Supreme Court has also made clear that states are free to act on their own to ban racial preferences, through ballot initiatives or legislation.  The struggle goes on.

I had a similar take on National Review Online here.  You can listen to me talk about the case on this Federalist Society teleforum; I also was interviewed on a Chinese-American radio station, and I was quoted in the New York Times, Washington Post, and elsewhere.

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And just before the decision, Columbia president Lee Bollinger had an essay in the New York Times favoring racial preferences, which I responded to in National Review Online: 

[Bollinger’s essay] makes three points, which can be briefly stated and refuted: 

• As the book Mismatch and others have documented, while the number of African Americans and Latinos admitted to a couple of California universities may have gone down in the wake of banning racial preferences there, the number of students who have graduated in the University of California system has gone up dramatically.
• Exposure to different viewpoints can be an educational positive, but it doesn’t justify something as ugly as racial discrimination, with all its costs, and in all events there is no reason to use race as a proxy for having a different viewpoint. 
• As for using racial discrimination to achieve racial balancing, this is nothing more than the “discrimination for its own sake” that Justice Powell explicitly rejected decades ago in his Bakke opinion.

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Finally, I should note that, no surprise, Justice Kennedy’s lame opinion did nothing to persuade the overwhelming majority of Americans that racial discrimination in university admissions is a bad idea. 

In the wake of the Supreme Court’s Fisher decision, a poll of the public by Gallup, with questions drafted with Inside Higher Ed, finds that the general public disagrees with the Court and college leaders. Nearly two-thirds (65 percent) of those surveyed by Gallup between June 29 and July 2, 2016, said they disagreed with the decision. The ruling was backed by 31 percent, and 4 percent had no opinion.

You can read IHE’s article here, which gives details on how deep and wide the public’s disapproval is. Note also that the article has a sidebar about a September 15 conference (I’ve agreed to be a panelist at the latter). 

I’m quoted at the end of the IHE article:

Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes the consideration of race in admissions, said he was not surprised or alarmed by the poll results. “Americans have been brought up to believe that it’s a bad thing to treat people differently because of their skin color or where their ancestors came from,” he said. “None of this is surprising.”

Clegg said that public colleges and universities that feel secure in considering race in admissions should also remember that voters or legislators can pass laws that bar them from doing so. And in fact, that has happened. In 2003, the U.S. Supreme Court upheld the right (in some circumstances) of the University of Michigan to consider race in admissions. In 2006, the state’s voters barred public universities in the state from considering race in admissions–and that ban stands.

Asked about greater public support for considering athletic ability or alumni status than race in admissions decisions, Clegg acknowledged that the motivations of colleges for wanting to favor athletes or alumni children were not “the noblest” of all college motivations.
But he said that he agreed with the public that it’s better to consider those factors than race. “Discriminating against people on the basis of skin color is uniquely ugly, and I am not surprised and not bothered by the fact that more Americans should be offended by that than because applicants can throw a football well.

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As I said, the fight will go on against racial preferences in higher education.