I’d like to bring you up to date on some odds and ends involving the two big Supreme Court cases in which the Center for Equal Opportunity is involved this term: Fisher v. University of Texas (in which we challenge racial preferences in university admissions) and Shelby County v. Holder (in which we argue that Section 5 of the Voting Rights Act, which requires some states — mostly in the South — to get permission from the federal government before making any voting-related changes, is unconstitutional).
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I’ve reviewed two excellent books, both highly relevant to the pending Supreme Court decision in Fisher, for the Federalist Society’s online publication Engage. The books are Mismatch: How Affirmative Action Hurts Students It’s Intended To Help, and Why Universities Won’t Admit It (by Richard Sander and Stuart Taylor, Jr.) and Wounds That Will Not Heal: Affirmative Action and Our Continuing Racial Divide (by Russell K. Nieli). The two books are filled with evidence damning the use of racial preferences in university admissions.
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A survey of college presidents discussed recently in Inside Higher Education found that “only 70 percent of campus leaders agreed or strongly agreed with the statement that consideration of race in admissions has had a ‘mostly positive effect on higher education generally,’ and only 58 percent said the use of race in admissions has had ‘a mostly positive effect on education’ at their institutions.” The article notes that the sizeable minority out of “lockstep” with the diversity mantra is in contrast with the public statements and briefs of schools.
But other surveys have also found surprisingly strong support for nondiscrimination even among academics (to say nothing of the general population). And, as I said in my quote in the article, the relatively low positive response in the survey is probably too high, since presidents are more likely to dissemble about supporting racial preferences than about not supporting them. What’s more, the question was phrased in a way to reinforce the social correctness of a positive response, and more presidents were “generally” positive than positive vis-à-vis “at my institution” — that is, the more they knew about the effect of racial preferences, the less likely they were to support them.
One broader point: To justify racial discrimination in higher education as a legal matter, there have to be “compelling” reasons for it. How compelling can those reasons be if a sizable minority of college presidents don’t view the discrimination as having positive effects at all? Not to mention the fact that most schools don’t use preferences at all — since they are nonselective or are in states that have banned them.
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One last note with regard to Fisher: As the Supreme Court mulls over the case, the problems with the “diversity” justification for racial and ethnic preferences continue to mount — see here (more evidence of the “mismatch” problem) and here (“A Critical Look at the ‘Critical Mass’ Argument”).
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On to Shelby County v. Holder, the Section 5 case. Did you know that wonkmeister Nate Silver loves Chief Justice Roberts? Well, “love” may be too strong a word, and certainly Mr. Silver tries hard to hide his tender feelings. But his recent New York Times blog post – most of which was in the hard-copy Times last Friday, and in which he wades into the controversy over the Chief Justice’s citation of Massachusetts and Mississippi voting-behavior statistics during the Shelby County v. Holder argument last week – seems on balance to support the point the chief justice was making. Mr. Silver doesn’t conclude that the Chief Justice was wrong in what he suggested about the two states — that is, that the former looks worse in comparison with the latter — but then broadens the discussion from Massachusetts and Mississippi to covered and noncovered states generally. Here’s what he concludes (emphasis in original):
So did Chief Justice Roberts misconstrue the data? If he meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious. However, the evidence does support the more modest claim that black turnout is no worse in states covered by Section 5. There don’t seem to be consistent differences in turnout rates based on whether states are covered by Section 5 or not.
That’s all that’s needed to call into question a key factual premise of Section 5. Yes, as Mr. Silver then continues, there are other issues that the case raises that this fact does not settle — the cause of the changes in voting behavior in covered jurisdictions and what might happen if Section 5 is struck down – but nobody, and certainly not the Chief Justice, ever said otherwise, and the fact that there are other questions doesn’t diminish the importance of the answered one.
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I have mentioned some unfavorable major newspaper editorials in the Shelby County case, so simple fairness dictates that I recognize a good editorial as well — namely the Chicago Tribune, which concludes: “Like the rest of the nation, the South is far from immune to racial conflict and prejudice. But it has changed beyond recognition, and it’s about time for the law to change as well.”
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I spoke at Temple law school last week on the Fisher case, and am speaking at the Indianapolis lawyers chapter of the Federalist Society this week about the Shelby County case. And you can listen to a radio talk-show discussion in which I participated about Shelby County here (please scroll down to “Is the End of the Voting Rights Act Near?”; my segments were at 8:28 – 13:30, 21:00 – 23:35, 29:00 – 32:40, and 34:28 – 36:00).
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One last item, related to neither of our Supreme Court cases, but involving an issue arguably more important than either and on which CEO has also been outspoken: A recent editorial in USA Today concludes, “So, sure, explore Obama’s plan to expand quality preschool, and make sure kids aren’t then dumped into failing elementary schools. But don’t miss the core problem. The primary engine of social advancement has always been the family, and it is breaking down.” And the rest of the piece is even more explicit, blaming out-of-wedlock birthdates and, believe it or not, having the courage to cite Daniel Patrick Moynihan’s prescient 1965 report on the breakdown of the black family. Great stuff, and I was surprised to read it in USA Today. Maybe we’re making some progress.
