There have been two major developments in the past week in the fight against racial and ethnic preferences in university admissions, a fight in which the Center for Equal Opportunity has long played a leading role.
First, in Fisher v. University of Texas, the U.S. Court of Appeals for the Fifth Circuit denied further review of a panel decision that had rejected the challenge to that school’s use of racial and ethnic admission preferences. So we are probably headed back to the Supreme Court — which is not a bad thing, not a bad thing at all. CEO has written numerous briefs and other commentary on the case, and we will continue to do so.
Second, Harvard University and the University of North Carolina–Chapel Hill have been sued for racial discrimination in their student-admission policies, according to this press release, and more lawsuits against other schools are promised.
These are extremely important developments. For years, universities could engage in this kind of politically correct discrimination with great confidence that the chances of their being sued were small, since plaintiffs were so unlikely to materialize. This was especially true when, as now, the U.S. Department of Education has no interest in policing the use of racial preferences. With this new litigation strategy, those days appear to be over.
Note that the Harvard lawsuit argues, in particular, that Asians have replaced Jews as a group for which a ceiling is set. It’s also explicit in asking for an end to racial preferences, not just an amelioration of them.
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Another area of longstanding interest for the Center for Equal Opportunity is our opposition to the use of race in political redistricting. So we have also been involved in the Alabama redistricting case that was argued to the Supreme Court last week. We helped write and joined an amicus brief in the case, participated in a moot court to help prepare Alabama’s solicitor general for the argument, and debated the approach the Court should take in this podcast recorded after the argument.
The political and legal issues involved in redistricting can be complicated, but the role for race is simple: It should not be considered.
In whatever opinion it writes in this case, the Court should make clear that Section 2 and Section 5 of the Voting Rights Act — and the Court’s own past jurisprudence — should not be interpreted in a way that encourages race-based decisionmaking. Some Republicans may want the VRA to require racial gerrymandering of one sort, and some Democrats may want it to require racial gerrymandering of another sort, but the Court should make clear that, no, the VRA should if at all possible not be interpreted to require racial gerrymandering of any sort.
As a matter of both constitutional and statutory law, the government should not consider race when it is drawing voting lines. It may not be irrational to use race as a proxy for commonality of interests on some issues, or voting behavior, but the Constitution sets a higher standard than that when the government uses racial classifications. There is no compelling reason for considering race, especially when weighed against the inherent costs of government race-based decisionmaking. And any interest the government has can be served by looking beyond race — that is, by not using race as a proxy — and looking to the underlying reason for individuals’ backgrounds and perspectives. The use of race will never be narrowly tailored.
The costs of condoning race-based redistricting, by either party, are very high. It encourages racial essentialism, racial appeals, racial approaches to policymaking, and identity politics generally. Conversely, it discourages interracial coalition building and broader, nonracial appeals. It becomes more and more untenable as America becomes more and more multiracial and multiethnic. Instead of Queens, Brooklyn, the Bronx, Manhattan, and Staten Island, are we to draw the black borough, the white borough, the Asian borough, the Latin borough, and the Arab American/American Indian borough? Conversely, if normally a geographic entity with strong commonality of interests would not be divided, why should it be permissible to divide it because it happens to be racially homogeneous?
When redistricting officials are deciding when to zig and when to zag, that decision should not hinge on the skin color of the person who lives in the house.
The Court must bear in mind, too, that if gerrymandering is permitted to benefit this racial group, it must also be permitted to benefit that racial group – nothing else will work as a constitutional matter, and nothing else will work in a country where any group will be a minority somewhere. If it is permissible to gerrymander to ensure a particular outcome for blacks, then it must be permitted for whites; if it is permitted for Latinos, it must be permitted for Asians. If we recognize commonality of interests for black people and are willing to accept and even encourage appeals to them as black people, then we must accept such appeals to Latinos and Asians — and whites.
