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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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The history of university conduct in this sphere underscores this requirement, and this point is made with quiet drama by the brief of the Center for Individual Rights, the group that carried (along with the Maslon law firm in Minneapolis) the years-long burden of the Michigan cases. The CIR points out that the Supreme Court’s current ‘narrow tailoring’ jurisprudence “encourages stealth.” Universities behave deviously, advancing their objectives (in the words of Justice Ruth Bader Ginsburg) with “winks, nods, and disguises.” Their declarations are not to be trusted, certainly ought not be deferred to. “Experience with racial preference by universities,” contends the Center for Individual Rights—which has had more such experience than any other organization—“further militates in favor of a searching strict scrutiny.” Yes it does; and such scrutiny was almost entirely absent in Grutter as also in Fisher.

The ugly history of racial discrimination in higher education is examined perceptively in the brief of the California Association of Scholars (joined by the Center for Constitutional Jurisprudence, the Reason Foundation, the Individual Rights Foundation, and the American Civil Rights Foundation). That history, they point out, renders higher education “an unlikely recipient of the Court’s deference on issues of race.” This brief also explores the very special circumstances under which the uses of race may be found rightly “compelling”—circumstances certainly not realized in the Fisher case.

Sixth, the most powerful of all the amicus briefs are those that marshal the evidence—copious, detailed, and reliable evidence—that simply cuts the ground from under the Grutter decision. That decision was based entirely on the Court’s belief that diversity was a central and absolutely compelling need for the University of Michigan and for all universities. Diversity, that decision concluded, was not simply a good thing, but a thing so absolutely necessary that even the temporary abandonment of the Equal Protection Clause of the Fourteenth Amendment must be allowed in order to achieve it. But this is hogwash. The Court in Grutter was bamboozled. Several of the current amicus briefs point that out with cool ferocity.

The brief of Abigail Thernstrom, Stephan Thernstrom, Althea Nagai, and Russell Nieli is nothing short of dynamite. With a careful review of the evidence presented by distinguished, reliable, and impartial social scientists, they prove how incredibly mistaken the premise of that argument was. They examine all that is known about diversity and its impact, and they conclude, without reservation, that the previously supposed merits of diversity are illusory, without foundation. They show that in fact we can now be confident that diversity has consequences almost the reverse of those the Court had supposed. Their quiet language belies the explosive impact of their findings. “The primary justifications for the use of race-based preferences in higher educations admissions that the Court relied on in Grutter are flawed and fail to support the notion that there is a compelling state interest in diversity in higher education.” They go on to demonstrate the truth of a claim that I have myself been defending for years, on the basis of long experience at the University of Michigan: “The mere fact that racial diversity increases contact between students of different races does not improve race relations among students.” That’s right; it does not.

An unusual but very informative brief has been submitted by Richard Sander and Stuart Taylor Jr.—in support of neither party! Hence I report that the number of briefs in Abigail Fisher’s support is 17 and one half. But this half is important. Sander reports: “Social science research has undermined the central assumption underlying all racial preference programs in higher education admissions: that they are good for the intended beneficiaries.”

Rick Sander is my friend, a fine statistician as well as a professor of law at UCLA. He long ago published an influential essay in which he demonstrated statistically that minority students who, by dint of preference, enroll in law schools to which they would not otherwise have been accepted suffer markedly as a result. They do less well in school, and they prosper less in their subsequent professional lives, than would have been the case had they attended schools for which they were indeed qualified. The artificial mismatch created by affirmative action results in lower class rankings, inferior professional appointments, and substantial injury to their careers. This theme is defended in detail in his amicus brief: “Key assumptions accepted by the Court below are doubtful: Evidence suggests that large racial preferences add little classroom diversity and do not make the university more attractive to minority candidates.”

An allied and penetrating explanation of some of the negative consequences of race-preferential admission is presented by three members of the U.S. Commission on Civil Rights: Gail Heriot (my personal heroine), Peter Kirsanow, and Todd Gaziano. They marshal scientific evidence showing that race-preferential admissions, although “intended to facilitate the entry of minorities into higher education and eventually into high-prestige careers,” do the opposite. Such preferences “have the effect of discouraging preference beneficiaries from pursuing science and engineering careers, .  .  . discouraging minority students from becoming college professors, .  .  . [and] decreasing the number of minority students who graduate and pass the bar.”

Finally, there is the one brief that is most persuasive overall, that of the Pacific Legal Foundation, the American Civil Rights Institute, the National Association of Scholars, and the Center for Equal Opportunity, whose president, Roger Clegg, is the most penetrating, knowledgeable, and tenacious of all current opponents of race preferences. This brief argues, along with the Thernstroms and others, that “the benefits that flow from a diverse student body are highly dubious.” But more than all the others, this brief underscores the negatives, explaining with care and depth why “the costs attendant to racial classification outweigh any benefits that flow from a diverse student body. Government racial classifications are destructive of democratic society; government racial classifications dehumanize us as individuals; racial preferences in college admissions cause serious harm to the very students the preferences are intended to benefit.” No rational person can read this eloquent set of arguments thoughtfully and continue to suppose that racial preferences for the sake of diversity are a good thing. They are poison.

The Pacific Legal Foundation, the ACRI, the NAS, and the Center for Equal Opportunity conclude, appropriately, by explaining why the principles of stare decisis, worthy of great respect of course, “do not support the preservation of the highly flawed Grutter decision.”

These, then, are the principal arguments of the amicus briefs. I will be forgiven, I trust, if I formulate two arguments that are implicit throughout and that deserve explicit emphasis.

First, racial classifications are appraised by the federal courts with “strict scrutiny.” Under this high standard, a racial classification, if it is to be permitted, must be “necessary to further a compelling governmental interest.” When does a state interest become “compelling”? The concept of a compelling interest deserves reflection.

There may be occasions on which a state is obliged to use racial classifications because, in the light of the racially discriminatory history within some institution, there is no other way in which to give appropriate recompense for the racial injuries earlier done. In such circumstances the use of race may indeed be compelling, because if the state is to do justice, as it is morally obliged to do, there is no alternative. It is that recognition of unavoidable moral obligation that brings the concept of compulsion into this arena.

With this clearer view of the concept of a “compelling state interest,” we can see that a program that offers educational advantages, even if those are substantial advantages, cannot be compelling in the moral sense. There may be rare exceptions in extraordinary circumstances, but the state’s use of racial classification, departing from the Equal Protection Clause, can in general be justified only by some moral compulsion. This explains why the justifiable uses of race have almost invariably been in remedial circumstances, righting identifiable wrongs. It also helps to explain why using racial categories to avert supposed dangers (as when Japanese-American citizens were ordered into internment camps during World War II) is so deeply offensive.

Second, even if one grants arguendo (as I surely do not grant in fact) that there really are substantial merits flowing from diversity in an entering university class, the many undeniable negative consequences inherent in racial categorizing must be weighed against them, as the brief of the Pacific Legal Foundation, et al., makes clear. After that weighing, it is only the residual balance of the two that can serve as a defense of the diversity rationale. Because those negative consequences are in fact grave, the residuum on the side of the diversity rationale is certainly slight, if there is any residuum at all. And it is that residuum of advantage (if any) that must be accepted as compelling if the rationale is to succeed. It is (in sum) the results all things considered that must be compelling for that diversity rationale to be persuasive. Yet that outcome, on balance, is probably negative.

If there are any residual advantages of diversity all things considered (which in my view is not the case), they cannot be morally compelling. The diversity rationale must therefore fail even if the weighing of advantages and disadvantages were to result in a positive outcome for diversity. To call diversity “compelling” in the context of state action is a category mistake. Fisher v. University of Texas gives the United States Supreme Court an opportunity to correct this unfortunate error.

Carl Cohen is a professor of philosophy at the University of Michigan. He was a leading advocate of the initiative resulting in the amendment of the Michigan constitution to forbid preference by race or ethnicity by public institutions.

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