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Supreme Court’s Decisions on Race Preferences Increasingly Meaningless

The opinions expressed by columnists are their own and do not necessarily represent the views of

Conservatives are praising last week’s Supreme Court decision in Fisher v. University of Texas, which dealt a slight blow to affirmative action. The high court remanded a decision upholding affirmative action back to the trial court, with instructions to use a stricter standard of review, known as strict scrutiny. Opining for the majority in the 5-4 decision, Justice Anthony Kennedy held that in order for the University of Texas’s affirmative action program of race discrimination to be found constitutional, the university must prove that it has no feasible alternative to considering race in admissions. The Court didn’t go quite as far as reversing Grutter v. Bollinger, the 2003 case which upheld the University of Michigan Law School’s affirmative action policy.


The Supreme Court has been steadily backing away from upholding affirmative action laws, and this decision provided more evidence of that shift. Former Supreme Court Justice Sandra Day O’Connor, writing for the majority in Grutter v. Bollinger, famously predicted, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Her statement was both promising and disturbing, implying that our constitutional rights can come and go at the Supreme Court’s whim, instead of acknowledging that we are endowed with immutable rights.

But the Supreme Court’s gradual elimination of affirmative action may be ineffectual. Universities and government agencies are finding ways to get around the restrictions. Instead of admitting the existence of quotas, and listing them in writing, which the Supreme Court said was prohibited in Grutter v. Bollinger, government elites are finding more subtle ways to favor preferred minorities over whites and Asians.

The New York Times ran an article a little over a year ago investigating this. Immediately after initiatives were passed in several states banning race preferences, minority enrollment in those states’ top public universities decreased. However, it went back up again, as the universities found ways around the bans. Hispanics accounted for 14 to 15 percent of the students at the University of California before Prop. 209 was passed in 1996. Their numbers dipped down to 12 percent in 1998. But by 2010, Hispanics accounted for more than 22 percent of incoming freshmen.


A study of incoming medical students last year found that blacks and Hispanics were two to three times more likely to be admitted than their white or Asian counterparts with equivalent academic records. At the University of Arizona, the administration got around prohibitions against “quotas” in university employment by using semantics. The university labeled them “goals,” in order to make them appear less like rigid quotas.

Asian Americans are not considered a preferred minority and are passed over the same way whites are. Ron Unz, publisher of The American Conservative, found that the percentage of Asian Americans enrolled at Harvard has declined, from 20.6 percent in 1993 to about 16.5 throughout most of the last decade. At the same time, the college age Asian American population has doubled. Unz also found that the white student population at the University of California, Berkeley has declined from over 80 percent to just 45 percent today.

Since higher academia and much of the government is controlled by the left, there is virtually no one who will stop this secretive form of race preferences. In Professor Mary Grabar’s new book, Blacklisted by Higher Education, she includes stories from conservative white professors who were told by hiring committees they were not selected for academic positions because they were designated for minorities.


The Supreme Court is unlikely to get involved investigating the minutiae of secretive noncompliance. Supreme Court opinions are all about lofty ideals and vague or theoretical reiterations of rights. It would take a gargantuan effort to uncover the level of noncompliance that exists around the country throughout public universities and many layers of government.

Justice Clarence Thomas, who wrote a concurring opinion in Fisher v. University of Texas comparing affirmative action to segregation and slavery, has said in the past that affirmative action stigmatizes minorities and makes them appear inferior. He felt that his law degree from Yale Law School was viewed as less valuable than a white Yale Law graduate, because employers suspected he attended there due to affirmative action, not his intelligence. He had difficulty finding a job after graduation, as a result of Yale’s affirmative action program which made his degree “worth 15 cents.” Thomas wrote in his memoir, My Grandather’s Son, "I learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it. I'd graduated from one of America's top law schools, but racial preference had robbed my achievement of its true value."


Because of the City of Seattle's affirmative action policies, virtually all street cleaning and sanitation positions are being filled by blacks and other minorities. The impression this gives to the casual observer is that blacks are cleaning up after everyone, not much different than the era of Jim Crow.

So what does this all mean? The Supreme Court is losing its power relative to the other branches of government. Considering the Supreme Court is made up of just nine men and women, while the rest of government keeps expanding, this loss of power was inevitable. The sheer numbers of liberals in government, particularly at the universities, are outmaneuvering the Supreme Court. The Supreme Court only decides about 80 cases each year, not enough to combat the thousands of decisions being made each year under the radar by liberal elites.

Even if affirmative action is completely struck down by the year 2028, as Sandra Day O’Connor predicted, it will continue on in full force, disguised as something else. Knowing the left, it will be renamed to something Orwellian, like “double equality.” And minorities will continue to be looked down upon and passed over for opportunities, because few will think they arrived where they did in life due to their intelligence.


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