The first setback came last June in Fisher v. University of Texas at Austin. In that case, the U.S. Supreme Court expressed deep skepticism about the University’s attempt to racially balance its student body. The Court clarified that racial preferences are constitutional only if they satisfy “strict scrutiny” – i.e., they are necessary to achieving a compelling governmental interest. After Fisher, the University does not get a free pass on the question of necessity. The University must use substantial evidence to prove that racial preferences are the last feasible alternative for achieving its interest. This is a very high burden for the state to carry.
Another setback occurred when the California legislature failed in its effort to repeal Proposition 209, which prohibits the government from giving preferential treatment based on race. The repeal effort was thwarted when many Asian-Americans mobilized against it. These individuals recognized that when racial preferences in college admissions are permitted, discrimination against Asian-American college applicants becomes commonplace.
A similar setback is the Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action. In that case, the Supreme Court upheld Michigan’s ban on racial preferences. In effect, the case also upheld Prop. 209 (and similar bans on racial preferences in six other states), and it paved the way for more states to ban racial preferences. These state bans make racial preferences automatically illegal, even if they would satisfy Fisher’s demanding strict scrutiny.
In addition to these victories for equality under the law, recent polls show that most Americans oppose racial preferences in college admissions. Last July a Gallup poll showed that two-thirds of Americans, including three-quarters of whites and 59% of Hispanics, oppose such preferences. Similarly, a poll last June by ABC News and the Washington Post showed that 79% of whites and 71% of non-whites – including 78% of blacks and 68% of Hispanics – oppose such preferences. Even political liberals oppose racial preferences by a 2-to-1 margin, which would explain why many moderate and liberal publications have supported Prop. 209 and called for an end to racial preferences.
A Pew poll last month might seem to show different public-opinion results. However, as one article has noted, Pew’s results differed from results of similar surveys due to the wording of the question. Pew asked the respondents whether they think “affirmative action” in college admissions is generally a good thing. The results showed majority support for affirmative action, and Pew tried to sell those results as support for racial preferences. That was disingenuous. “Affirmative action” has many meanings that have nothing to do with racial preferences. Indeed, “affirmative action” initially meant efforts to end racial discrimination.
In 2003, a bare majority of the U.S. Supreme Court infamously predicted that racial preferences in college admissions would no longer be justified in 2028. Such preferences seem likely to end sooner than that, given these major setbacks.