Big year coming up for racial preferences at the Supreme Court

Not only will the Supreme Court be taking on the issue of racial and ethnic preferences in university admissions this fall when it hears Fisher v. University of Texas, but it may well be hearing important civil-rights cases involving voting and housing, too.

Regarding Fisher— in which, as you know, the Center for Equal Opportunity has played a leading role — anarticle in Inside Higher Ed last week discussed a new “study” that decried the possible end of racial and ethnic preferences in higher education by pointing to a decline the grad-school enrollment of some racial and ethnic groups in states that have, by state law, ended such discrimination. I’m quoted in the article, and I also added this comment(which got appreciative shout-outs across the blogosphere) to it on Inside Higher Ed’s website:

I appreciate IHE quoting me in this article. Here’s a more extended take:

(1) In the runup to Fisher, we will likely see a lot of “studies” like this, by advocates and designed to shore up the crumbling case for racial preferences.

(2) The irony of this particular study is that the weight of research shows more and more clearly that racial and ethnic preferences have HURT African Americans and Latinos and Native Americans in the STEM area. Because of the systematic mismatching of students and schools, those groups admitted with academic qualifications lower than other groups have tended to drop out or switch majors into easier disciplines. This was the conclusion of the recent study at Duke; this is also argued comprehensively in the amicus briefs filed recently with the Supreme Court by Richard Sander and Stuart Taylor, and by Gail Heriot, Todd Gaziano, and Peter Kirsanow.

(3) In this regard, the study here is just about enrollment — not about graduation. That is a huge hole. And, of course, there may be other confounding factors — like the increase of Asian American and Middle Eastern students, for example, or the economy. Note also that the declines don’t seem to me to be that large, and of course some decline is entirely to be expected when racial preferences are eliminated — this is indeed just evidence that some students were being admitted because of skin color.

(4) There is no showing here that there has been a decline in overall enrollment at these schools — just that some (less qualified) students have been replaced by some other (more qualified) students.

(5) It cannot be assumed that the students who are turned down here are not admitted somewhere else — and, if they are admitted to schools where their qualifications are on par with the other students’, they will likely do better.

(6) Even if fewer students of one group are admitted to schools overall as a result of the end of racial preferences, this is not as bad a result as the continued, systematic discrimination on the basis of skin color and national origin. Would we accept an argument that discrimination against Jews had to be continued because there were more and more Gentiles who were losing out to them in med schools admissions? This is no different.

(7) Finally, the argument that we need racial preferences in order to increase the number of certain groups in the STEM area is not one that is being argued by the University of Texas, nor is it one that the Supreme Court has ever recognized. To the contrary, this sounds a lot like the “discrimination for its own sake” that Justice Powell rejected in Bakke. It is, moreover, a silly argument: If we are facing a shortage of “scientific manpower,” there is no reason why we should use race in filling that gap: We should welcome any student of any color who might not otherwise have considered this field.

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Petitions for review were filed this past Friday, July 20, in two cases that challenge the constitutionality of Section 5 of the Voting Rights Act — one involving Shelby County, Alabama, and the other, Kinston, North Carolina. This issue was presented to the Supreme Court in 2009, and at that time the justicesacknowledged the serious problems raised by Section 5 but avoided deciding the matter. They ought to decide it now.

Section 5 requires some state and local jurisdictions — mostly but not exclusively in the South — to “preclear” with the federal government any change related to a voting practice or procedure, no matter how big or small. It defines coverage in an outdated and irrational way. What’s worse, Section 5 is now used principally as a means to ensure that voting districts are drawn with an eye on race — and, in particular, with an eye toward segregating districts. So the law in 2012 is outdated and irrational, and inconsistent not only with federalism principles but also with the original ideals of the civil-rights movement. The Center for Equal Opportunity plans to help write and join a brief urging the Supreme Court to grant review.

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The Obama administration has been a great fan of the “disparate impact” approach to civil-rights enforcement. That means that the government challenges a practice — in employment, housing, voting, environmental law, you name it — simply because it has a disproportionate statistical effect on one racial (or gender, etc.) group or other; what’s more, the government does not have to prove or even allege that the practice is actually discriminatory by its terms, in its application, or in its intent. So, for example, if a bank required a down payment, or credit history, or home value, or whatever that the government didn’t like, it could sue — and it would be up to the bank to prove to the satisfaction of a judge or jury at a trial that there was some sort of “necessity” for that practice. Anyway, the banks have started to push back against this practice with the regulators, and they also may get a chance next term to persuade the Supreme Court that such lawsuits are not within the Fair Housing Act (the Center for Equal Opportunity has helped write and joined a brief urging the Court to take this case, too).

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