October 8, 2015

Universities hide their use of race in admissions

By Joshua P. Thompson Senior Attorney

No university that uses racial preferences in its admissions process seriously questions whether racial preferences are beneficial — or whether the undeniable costs of its policy outweigh the benefits. Moreover, these discriminating universities refuse to heed the Supreme Court’s repeated command that racial preferences may be used — if ever — as a last resort option to achieving the benefits of a diverse student body. And as a result of their staunch unconstitutional defiance, universities using racial preferences refuse to turn over records — if they have any — demonstrating that they are complying with the Supreme Court’s commands.

PLF’s amicus brief in Fisher v. University of Texas at Austin highlights how universities’ refuse to acknowledge the Supreme Court’s limitations on the use of race-based admissions policies. Take one example from our brief. The Virginia Association of Scholars sent the University of Virginia a public records request for documents showing that it seriously considered race-neutral alternatives before resorting to racial preferences — as the Equal Protection Clause requires. The University of Virginia responded with a link to its website and a copy of an amicus brief it signed on to in Fisher I. That rather flippant response is hardly the type of serious introspection that the Supreme Court requires universities to engage in before resorting to race-based admissions.

Peter Schmidt wrote about this phenomenon yesterday in an article (behind a pay wall) in The Chronicle of Higher Education.  He writes that “Public universities have long been accused of defying state open-records laws to conceal damaging information about such practices.”  The article highlights PLF’s brief and demonstrates the extent to which universities will go to keep hidden the effects of their race-conscious admissions policies.

We are halfway through Grutter‘s 25-year clock on the constitutionality of race-conscious admissions.  And despite that Court’s belief, universities are not scaling back their use of race. To the contrary, they are increasing it. By highlighting this defiance, PLF hopes to demonstrate to the Supreme Court that a strong ruling is required in Fisher II. Anything short of holding the University of Texas’s policy unconstitutional will signal to public universities across the country that their current policy of discrimination and obfuscation may continue indefinitely.

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