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Supremely Overdue

With Fisher v. University of Texas, the High Court can finally put an end to racial preferences in university admissions

Oct 1, 2012, Vol. 18, No. 03 • By CARL COHEN
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Third, other minorities, Asian Americans and Indian Americans especially, are seriously discriminated against by the preferences used at the University of Texas. Their voices are raised very effectively in some of the amicus briefs submitted. The Asian American Legal Foundation and the Judicial Education Project write: “Racial diversity programs discriminate against Asian-American individuals by treating them as members of an overrepresented and hence disfavored race”; and, moreover, “Discrimination against Asian-American individuals in order to benefit other races is odious and demeaning to individual students.” Yes, odious and demeaning is just what it is. A group of five organizations including the National Federation of Indian American Associations, the Indian American Forum for Political Education, and the Global Organization of People of Indian Origin contends that race is frequently “a decisive factor in college admissions, most greatly disadvantaging fully qualified Asian American students.” This group, joined by the Louis D. Brandeis Center for Human Rights Under Law, presents and defends the painfully telling point that “The pretexts employed to limit Asian American School Enrollment are indistinguishable from those utilized to impose quotas against Jews throughout much of the past century.” Touché!

Fourth, the University of Michigan hornswoggled the Supreme Court in 2003 by insisting that its law school never used numbers or percentages in preferring minorities, but was seeking nothing more than “a critical mass” of minority students. It was a clever and successful dodge. Chief Justice William Rehnquist, in his Grutter dissent, examined the numbers closely and demonstrated, with a clarity that ought to have embarrassed my university, that this position was an outright “sham.” Now in the amicus briefs in Fisher the “critical mass” theory gets a solid drubbing. Twenty-two distinguished scholars of economics and statistics from many universities join in one brief arguing that empirical evidence simply does not demonstrate “that minority students are benefited by a ‘critical mass’ of minorities in the classroom.” Indeed, they conclude, “No reliable empirical evidence known to [these] amici supports the critical mass theory.”

They go on to present, in a detailed appendix, sets of comparisons of the performance of blacks and whites in classrooms of different sizes with different numbers of each. The “critical mass” theory is statistically demolished. The theoretical demolition is provided by the Mountain States Legal Foundation, reaching this conclusion: “ ‘Critical mass,’ like societal discrimination, is an amorphous and indefinable concept that cannot be addressed by a narrowly tailored remedy.”

Fifth, one of the most infuriating aspects of the Grutter decision was the way in which the Court deferred to the University of Michigan, accepting its account of its needs without good evidence. Again in Fisher the Fifth U.S. Circuit Court of Appeals accepted the mere declaration of the University of Texas of its need for classroom diversity to achieve its educational mission. But, as the Southeastern Legal Foundation points out, the Supreme Court has previously been consistent in applying the “strong basis in evidence” test where racial classifications have been employed, and “Institutions of higher education are not immune from the obligation to show a strong basis in evidence,” which Texas surely has not done. The Cato Institute, in its brief, gives this argument powerful support, showing that “The concerns motivating the strong-basis-in-evidence requirement apply with special force to universities’ use of racial classifications to achieve diversity. .  .  . A university must demonstrate by a ‘strong basis in evidence’ that its use of racial classifications is necessary to achieve a compelling interest.” No such basis in evidence has been provided. The University of Texas has not sustained, and cannot sustain, its burden of proof.

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