June 29, 2015

Supreme Court agrees to review Univ of Texas racial preferences – again

By Supreme Court agrees to review Univ of Texas racial preferences – again

It has been a long road for Abigail Fisher, but she will have her day once again in the Supreme Court of the United States.  Two years ago the Court rightly ruled that tax-supported universities don’t deserve the benefit of the doubt from courts when they engage in race-based preferences and discrimination.  The issue stemming from Fisher’s lawsuit against the University of Texas at Austin, was whether the University’s practice of color-coding admissions applicants, and giving preferences based on race was necessary to achieve a racially diverse student body.

The Court held in 2013 that the Fifth Circuit used an improper standard and sent the case back for a more demanding review.  But last year the court of appeals again approved the University’s discriminatory policy.  The Court announced today that it would review that decision.  The precise issue is whether the University’s racial discrimination was justified because it used the least discriminatory means of achieving the educational benefits that flow from a diverse student body.  The case is Fisher v. University of Texas at Austin.

When the Court first reviewed this matter, the Court explained that public universities must seriously consider whether the educational benefits of race-conscious admissions can
be achieved in a less discriminatory and costly manner.  But public records requests submitted to public universities since then reveal that they are not seriously considering workable race-neutral alternatives to racially selective admissions policies.  A brief submitted by PLF attorneys with Center for Equal Opportunity, American Civil Rights Institute, Project 21, and the National Association of Scholars explains further.

It is hoped the Court will not just consider how universities go about selecting students by race, but whether attaining a racially diverse student body justifies the use of race in the first place.  In Grutter v. Bollinger, the Court ruled in favor of diversity by giving universities deference to decide whether achieving diversity was compelling, and how much diversity was necessary.

The Court should take a hard look at Grutter, particularly as growing evidence reveals that racial preferences in college admissions result in harm to the very students the preferences are intended to benefit.  Preferences result in academic mismatch: a significant gap in academic credentials between those students that received preferences and those that did not.  Research shows that students who receive large preferences struggle academically, even if the preferences were granted for non-racial reasons, such as athletic ability, or alumni connections.  Consequences often include poor grades, lower graduation rates, high attrition rates among science and engineering majors, lower self-esteem, and high failure rates on bar exams and medical examinations.

PLF Principal Attorney Meriem L. Hubbard issued this statement on the Court’s announcement that it will hear the Fisher case again:

“By taking up this case again, the Supreme Court is putting all publicly supported universities on notice that the courts will be watching if they use race-based discrimination or preferences in the admissions process.  University officials can’t get away with a policy of color-coding their applicants, based merely on the unsupported claim that they don’t have any other way to achieve diversity on campus.  That claim has to be backed up by evidence – something UT officials haven’t been able to do. When the justices give the situation at UT-Austin a close look, they should conclude there is no justification for the race-based admissions policy, because alternative, colorblind strategies are available for achieving a diverse student body.

“Ideally, the justices should use their second look at this case as an opportunity to reconsider the controversial precedents that allow race-based admissions even in limited circumstances.  The use of race in admissions at the University of Texas can’t be justified even under the court’s existing precedents, but it is time for a new ruling recognizing that judging students and applicants by their skin color, for any purpose or in any context, squarely conflicts with the Constitution’s guarantees of equal protection of the law.”

Under a proper reading of the Equal Protection Clause, treating students unequally because of their skin color can’t be permitted.   Not only is it morally and constitutionally wrong, it’s also a faulty formula for genuine diversity within a student body. Instead of assessing students on their individual achievements, experiences and perspectives, it stereotypes them by color.

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