WHEN THE SUPREME COURT, in the 2003 case of Grutter v. Bollinger, narrowly upheld the use of racial preferences at the University of Michigan Law School, it emphasized that such preferences were barely tolerable under the Constitution. They could be used only as a last resort, the court ruled, they must not unduly harm non-minorities, and public universities had to start finding ways to phase them out.
"We are mindful … that '[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,'" Justice Sandra Day O'Connor wrote for a 5-4 majority. "Accordingly, race-conscious admissions policies must be limited in time…. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point…. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
But eight years later, race-based admissions show no sign of moving toward "a logical end point." If anything they are more entrenched than ever. Far from using skin color as a last resort, many universities make it an explicit condition – as Abigail Fisher, a white high school senior, discovered when she applied to the University of Texas in 2008. Roughly one-fifth of the freshman class is selected according to a formula that takes race into account; when Fisher was rejected she sued the university on the grounds that its racial preferences violate the 14th Amendment's Equal Protection Clause. Relying on Grutter, the Fifth Circuit Court of Appeals upheld the university's policy. Now Fisher is appealing to the Supreme Court.
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Perhaps in 2003 there was some justification for O'Connor's expectation that universities, noting Grutter's many caveats – the majority used the words "narrow" or "narrowly" 20 times -- would be extremely wary of employing racial preferences. There is no such justification today, and it would be a fine thing if the Supreme Court used the Texas case to say so. It ought to reiterate what Chief Justice John Roberts – who was not on the court in 2003 – memorably wrote in a more recent opinion: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
There are many reasons to do so, beginning with the sheer moral repugnance of judging people by the color of their skin rather than the content of their character. More than 140 years ago, New York attorney John Jay – grandson of the nation's first chief justice – urged the Supreme Court to proclaim that the post-Civil War amendments had "destroyed the only exception recognized by the Constitution to the great principle of the Declaration of Independence, and that … all state legislation establishing or recognizing distinctions of race or color are void." Had the high court laid down that principle then, decades of segregation, repression, and racial cruelty might have been avoided.
Nowadays, of course, racial preferences in higher education are justified as both a means of benefiting minorities and of adding diversity to the universities that admit them. But as the Pacific Legal Foundation, the National Association of Scholars, and several other public-policy organizations argue in a friend-of-the court brief, those ends can be achieved without resorting to racial preferences. As proof they point to California, which has banned the use of racial preferences in public higher education since enacting Proposition 209 in 1996.
California's colorblind policy hasn't deprived underrepresented minorities of access to higher education. Quite the contrary. Between 1997 and 2010, the number of black, Latino, and American Indian students offered admission to the University of California system soared -- from 7,385, or 19.6 percent of all students accepted, to 16,635, or 42.6 percent of the total.
"Since Proposition 209 became effective in 1997, minorities continue to seek and be offered admission to the University of California in greater numbers without resorting to racial preferences," the amicus brief argues. "Accordingly, the University of Texas's argument that a race-conscious admissions policy is necessary to ensure a diverse student body rings hollow." Nor is California alone in rejecting racial preferences: Similar measures have recently been adopted in Michigan, Washington, Arizona, Nebraska, and Florida.
"Racial classifications, however compelling their goals, are potentially … dangerous," O'Connor wrote in Grutter. In a nation as multiracial and multiethnic as ours, it is not only unjust but unsafe to allow public institutions to indulge in racial preferences. Fortunately, it is also unnecessary.
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