Education

An Original Intention In her decision in the Harvard race case, released in September, Judge Allison Burroughs observed that “it was always intended that affirmative action programs be limited in duration.” The judge was right. That was the intention, as Justice O’Connor demonstrated long ago. In her opinion for the Court in 2003 in Grutter v. Bollinger, still the leading race-based admissions case, O’Connor repaired to first principles in quoting a 1984 case, Palmore v. Sidoti, specifically its teaching that “a core principle” of the Fourteenth Amendment was “to do away with all governmentally imposed discrimination based on race.” Accordingly, …

Recently the James G. Martin Center for Academic Renewal was kind enough to ask me to write for them on the decision last month in the Harvard case, in which the school is accused (rightly, in my view) of discriminating in its admissions against Asian Americans.  Here’s what I wrote for them. In a long-awaited decision, federal trial judge Allison Burroughs has ruled that, while Harvard does consider a student’s race in determining who gets in and who doesn’t (“the use of race in and of itself is admitted”), nonetheless Harvard is not breaking the law. That outcome was not …

Race Should Not Be a Factor I don’t usually spend time looking at opinion surveys. But a poll out the other day caught my attention on account of its main finding, which is that race should not play any factor in college admissions. This was the work of the Marquette Law Poll, a nationwide survey of voters sponsored by the Catholic University law school, and the arresting number is 77, as in the percent of voters who oppose Supreme Court decisions upholding the use of race as one factor in deciding which applicants get in. Preferences typically poll well—I mean …

Next month, voters in the state of Washington will decide whether to leave in place the ban there on discrimination and preferences in their state and local government contracting, employment, and education that they overwhelmingly endorsed in a similar ballot initiative in 1998.  Just before that election, the Center for Equal Opportunity published a study that documented the extent to which such discrimination was found at the University of Washington and Washington State University.  We have recently sent this study to some of our allies out there, noting that it is fair to point out to the voters this time …

How About 10 Percent? Reading the district court’s decision upholding Harvard College’s use of race in its admissions program, I was struck by Judge Allison Burroughs’ treatment of the term “critical mass.’’ It entered the affirmative action vocabulary in 1992, when the University of Michigan Law School adopted a new admissions policy that would use race to admit a more diverse student body. Barbara Grutter sought entry to the school but was turned down. She sued the law school, ultimately losing in the Supreme Court in 2003. That ruling, Grutter v. Bollinger, is the leading case on “consideration” of race …

For now, at least. A federal trial judge has ruled that, while race is considered by Harvard in determining who gets in and who doesn’t (“the use of race in and of itself is admitted”), and while the plaintiff group has standing in this case to challenge the resulting discrimination against Asian Americans (in line with an earlier ruling), nonetheless Harvard is not breaking the law. The outcome was not surprising, and the judge’s 130-page opinion is unlikely to change many minds or alter the expected trajectory of the case to the Supreme Court. The judge found, “Race is only …

The Assault on American Excellence In 1978, when the Supreme Court upheld race-based admissions in the Bakke case, there was just one Justice who said that the attainment of a diverse student body was a compelling state interest. Today “diversity” is no longer so obscure. Indeed, it is “the most powerful word in higher education today,” says Anthony Kronman. Kronman is a Yale Law professor and former dean of the Yale Law school. His politics are liberal yet he has not been fooled by the diversity cult. The Assault on American Excellence is his new book, which he previewed in …

Inside Higher Education The Supreme Court’s leading race-based admissions case remains Grutter v. Bollinger, which was decided in 2003. In the course of upholding the use of race in the admissions policy at the Michigan Law School, the Supreme Court, with Justice O’Connor writing for a majority of five, decided that diversity can be a compelling interest the pursuit of which can justify the narrowly tailored use of race in selecting applicants. O’Connor said the policy has “the potential to enrich everyone’s education.” Which can be done by enrolling a “critical mass” of underrepresented minority students, thus ensuring their ability …

Lots of recent news stories tell us that the College Board is adding an “adversity score”— looking at crime, poverty, and other demographic data from students’ neighborhoods and high schools — to the SAT scores it reports to universities for their applicants. This has attracted much attention and comment, so allow a poor but somewhat honest lawyer to put in his two cents’ worth. The principal point I’ll make is that, as a legal matter, this is of limited interest. In admitting students, schools are free to take into account pretty much whatever they like, with the notable exception of race …

The Office for Civil Rights Investigates   The Education Department’s Office for Civil Rights has dismissed a complaint by the Center for Equal Opportunity alleging that Texas Tech University unlawfully used race and ethnicity as a factor in its undergraduate admissions programs, starting with the entering freshman class of 2005 — but wait! Yes, the complaint was “dismissed” in the legal sense, but not until OCR had made sure that race was no longer a consideration in the University’s admissions programs. CEO has long argued for race-neutral admissions, at Texas Tech as well as at other institutions of higher education, …