Symposium: Extrapolating from Fisher — Racial preferences forever

SCOTUSblog

Thirteen years to the day after the Supreme Court said “[w]e expect that 25 years from now, the use of racial preferences [in university admissions] will no longer be necessary,” the Court on Thursday paved the way for perpetuating such preferences for many decades, perhaps centuries. Unless the next two Supreme Court appointees are strong opponents of racial preferences — a most unlikely prospect — the Court’s role since the 1978 Regents of the University of California v. Bakke decision as a modest restraint on use of such preferences is at an end. To be sure, Justice Anthony Kennedy’s opinion for […]

It’s Time to Improve Affirmative Action

National Journal

Now that the Supreme Court has blessed racial preferences, universities should be transparent about the costs and benefits to intended beneficiaries. By making clear that racial affirmative-action preferences in higher-education admissions are likely to have the Supreme Court’s blessing for many decades to come, the Court might—just might—have set the stage for a more candid and constructive public discussion about how to make preferences work more effectively for the intended beneficiaries. The June 23 decision should end the siege mentality among defenders of racial preferences—and that, in turn, should lead to much-needed transparency and honesty about the costs as well […]

Scalia’s Poorly Worded Comment Has Merit

Real Clear Politics

Justice Antonin Scalia ‘s dreadfully worded comments last week during oral argument about racial preferences in college admissions understandably offended many people. But what he was obviously trying to say made an important point that had nothing to do with racism — a charge hurled at Scalia by people including Harry Reid, the Senate Democratic leader, who once again wallowed in shameless demagoguery.

Debate: The Equal Protection Clause Forbids Racial Preferences in State University Admissions

Intelligence Squared Debate via YouTube
Stuart Taylor, Jr. in a Dec. 3, 2015 debate.

In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.” You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

A Little-Understood Engine of Campus Unrest: Racial Admissions Preferences

American Spectator

Why are some of the most privileged students in the nation plunging into a racial grievance culture and upending their campuses as though oppressed by Halloween costumes they don’t approve, imagined racial slights, portraits of Woodrow Wilson, a tiny handful of real racial epithets, and the like? The reasons are of course multifaceted. But one deserves far more attention than it has gotten: Many or most of the African-American student protesters really are victims — but not of old-fashioned racism.

Are Racial Preferences Now Entrenched for Decades?

Minding the Campus

As a critic of the current regime of very large racial preferences, I hope that Fisher v. University of Texas opens the way for a healthy shift of the focus in such lawsuits from legal abstractions to the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity. I detailed here the reasons for this hope, and I join other racial-preference critics in seeing the decision as a narrow if unsatisfying win on principle. But I also have a fear, explained below, that Fisher could be a prelude to entrenching racial preferences in university admissions […]

Racial preferences punt opens door to facts: Column

USA Today

The Supreme Court’s narrow decision Monday keeping alive a challenge to racial preferences in admissions at the University of Texas may open the way for a healthy shift in the debate from legal abstractions to whether these preferences are working as advertised. That should bring attention to the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity. The seeds of a potentially rich debate in future lawsuits and around the country about how racial preferences operate in practice and their effects on students can be found in Justice Anthony Kennedy’s spare opinion for himself […]

Race-Based Affirmative Action Makes Things Worse, Not Better

The New Republic

The Supreme Court made clear last month that it would keep affirmative action racial preferences on the front burner of the national conversation for at least the next year. This autumn, the Court will review a federal appeals court’s 8-7 decision striking down a 2006 Michigan voter initiative that banned racial preferences in state university admissions. Meanwhile, the justices are drafting their opinions in a reverse-discrimination lawsuit by a disappointed white applicant to the University of Texas that was argued last October. That decision, the first major constitutional challenge to racial preferences since 2003, is expected by June 28.

With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy–who has never upheld a racial preference–the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state’s 2006 initiative banning racial preferences in state programs. (The issue there is not whether it’s unconstitutional for universities to use racial preferences excessively, but whether it’s unconstitutional for voters to prohibit them entirely.)

The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation’s selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?

Why the Court Wants to Try Again

The Washington Post

The Supreme Court is scheduled to hear oral argument next week in Fisher v. University of Texas, the high court’s first case on the use of race in higher education admissions since its 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Why did the court decide to revisit this issue after less than a decade? Much of the speculation on this question centers on the shift in the court’s alignment; since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court is less sympathetic to racial preferences. But another factor is perhaps as important: Grutter and Gratz laid out a strategy for containing affirmative action that clearly, objectively failed.

Did Precedent Make Sotomayor Rule Against Ricci? – The Ninth Justice

National Journal

Judge Sonia Sotomayor has not defended her most widely criticized decision — the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. — as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor’s decision.

And as I’ve explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor’s three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications — no matter how job-related and racially neutral — on which blacks or Hispanics did badly.

Instead of defending her panel’s quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I’ll begin with critics’ simplest rebuttal to Sotomayor’s precedent-made-me-do-it claim: