The following contribution to our Fisher symposium comes from Roger Clegg, president and general counsel of the Center for Equal Opportunity.

Here’s the basic question in Fisher:  Just what is it that we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination by the government is justified to make it more likely that these conversations take place?

The purported existence of such conversations – which is what the “diversity” justification boils down to – is the only justification for admission preferences that the University of Texas is using or can use.  The Court has rejected the remedial justification in this context (and rightly so); it has rejected the role model justification (and rightly so); there is nothing else left (and rightly so).

So we need to think carefully about what these conversations might be.  Now, I am going to discuss why I think it is hard to imagine anything that will fit the bill, but those who disagree ought to spell out what oral observations they think do fit the bill.  Fair enough?

For starters, I say “oral” because they really ought not to be something that could just as easily be read, since then the observations might simply be assigned as class reading.  It would be better if the lessons were not simply about equality or tolerance or treating other people as human beings, if it is likely that such straightforward lessons have already been learned (at home or grade school or church or on Sesame Street) or can be learned elsewhere (say, at work).   And the observations should really be about something that only black and Latino students are likely to know.

So it can’t be an observation about growing up poor, because there are poor people of all colors; and of course the overwhelming majority of, say, African Americans who are admitted to our more selective schools – that is, the ones likely to weigh race and ethnicity – are from middle- or upper-class backgrounds (eighty-six percent, according to the race-preference bible, The Shape of the River).

It can’t be an observation about growing up as a slave, or under Jim Crow, or during the Civil Rights Era – because the eighteen-year-old students getting these preferences in 2012 were born in, let’s see, 1994, thirty years after the passage of the 1964 Civil Rights Act.  True, these students may have faced other discrimination – but then, so may have Asian students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college).   One reason that, say, Justice O’Connor might have assumed that all black people and all white people live in different worlds growing up was that, for her when she was growing up, there was a lot more truth to that than there is today.

If it’s not socioeconomic disadvantage or history, then perhaps there is a particular African-American perspective on calculus, or a Latino perspective on economics.  I mean, to be compelling it must have something to do with something weightier – less stereotypical – than food or rap music.  No?

Well, there must be something that middle-class eighteen-year-old African Americans and Latinos can tell eighteen-year-old whites and Asians that they are incapable of thinking of or reading about on their own.  Perhaps whites and Asians have never heard of racial profiling or the Trayvon Martin case, for example.

Whether the lesson schools are trying to teach is that African Americans have a particular point of view or, rather contradictorily, that African Americans don’t have a particular point of view – both are urged with equal vigor, even though the former relies on stereotyping and the latter seems rather obvious in a country that includes Condoleezza Rice and Whoopi Goldberg, Bill Cosby and Snoop Dogg, Herman Cain and Barack Obama  – it is odd that schools use racial essentialism in admissions and expect students to use it when listening to someone.  At least, it is odd if students are being taught not to judge other people by their skin color.

What’s more, schools have to have faith not only that these observations can be made, but that they will be made.  That is, they can’t know for sure what observations (if any) a black or Latino student might make in class; it is even harder to predict what observations that student will make outside of class.  So they have to have faith that those observations will be offered – and that a lot of counterproductive statements won’t be offered – as well as that the benefits from them being offered will justify something as ugly as racial discrimination.

Perhaps it’s not so much what the student says as it is how he or she says it.  That is, what schools are really hoping that whites and Asians will learn from “diversity” is that African Americans and Latinos are just as smart as they are (by the way, is there any evidence that, in a country whose laws and popular culture systematically condemn racial bigotry, this is a widespread problem?).  Of course, if it is of compelling importance that this point get made, it would be foolish to create a campus where the white and Asian students are systematically required to have better academic qualifications than the black and Latino students – which is exactly what schools are doing, of course.

Now, how compelling do these “educational benefits” have to be?  At a minimum, they have to be compelling enough to outweigh the costs of using racial preferences.  In fact, they must significantly outweigh those costs, since if something does as much harm as good, or even just a little more good than harm, the benefits can hardly be compelling.

So here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

By the way, the social-science evidence that there are compelling educational benefits that outweigh the costs is underwhelming, as discussed in the amicus briefs filed in Fisher by Abigail Thernstrom et al., Richard Sander and Stuart Taylor, Jr., Gail Heriot et al., the Pacific Legal Foundation et al., (including my organization), and a group of economics and statistics scholars.  My point in this post is that, simply as a matter of logic, it could hardly be otherwise.

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The other fundamental question in Fisher is:  How much deference should the Court give the University of Texas?  The answer is, not much.

Allowing racial discrimination on the basis of social-science evidence about the educational benefits of interracial contacts – again, that’s what this case boils down to – sets a dangerous precedent.  There were plenty of educators and social scientists once upon a time who thought that racial segregation was a good idea.  No doubt there are social scientists today who would sing the praises of same-race child adoption preferences (contra Palmore v. Sidoti) or matching students with teachers of a particular race (contra Wygant v. Jackson Board of Education, and Hazelwood School District v. United States).

Nor does it make sense for the Court to warn schools – for the third time, after University of California Regents v. Bakke and after Gratz v. Bollinger – that they can weigh race and ethnicity, but just not too much.  So long as universities are allowed to weigh race, there will be an irresistible tendency to do so mechanically and with an eye toward achieving a predetermined racial mix (thus, while the number of schools that use racial preferences is diminishing, the weight given those preferences at the remaining schools appears to be increasing).  That tendency is partly bureaucratic and partly because of the ideological stubbornness of whom we’re dealing with.

If, on the other hand, the Court says that weighing race is not allowed, schools will instead consider an applicant’s life circumstances and perspectives – and race may even still creep into it, but at least now it will more truly be as part of the “individualized consideration” the Court demanded in Grutter and Gratz.  So, if what a Justice wants is a very limited, nuanced consideration of race – and if what he or she wants to stop is a mechanical, numbers-driven consideration of race – then the Court should tell schools to stop weighing race.  That’s the only way to get there from where we are.

Is a ban on racial preferences in university admissions judicial activism – that is, is this an instance of a federal court wrenching a decision out of the hands of the states and illegitimately substituting its judgment for that of the political branches?

No.  Racial discrimination is the issue that is not, and ought not to be, left to state and local officials.  Racial spoils will always be attractive in politics, academic and otherwise.  And so the Constitution makes it clear that the use of racial classifications is not to be left to the states.  Thus, the federal political branches have spoken to this issue already.  They guaranteed the “equal protection of the laws” and outlawed racially separate legal standards with the Fourteenth Amendment in 1868.  They banned racial discrimination in the making of contracts (and that would include college tuition) in 1866, 1870, and – certainly – 1991, with the various enactments of 42 U.S.C. § 1981.  There is no social-science exception to any of this.

And the only reason that we are discussing the Constitution in this context was the decision by activist Justices in the Bakke case to ignore the crystal-clear language of Title VI of the 1964 Civil Rights Act:  “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination under any program or activity receiving Federal financial assistance.”   It cannot be denied that this is what happened to Abigail Fisher.

Posted in Featured, Fisher Symposium

Recommended Citation: Roger Clegg, Online Fisher symposium: No compelling interest, no reason not to say so, SCOTUSblog (Sep. 6, 2012, 12:24 PM), http://www.scotusblog.com/2012/09/online-fisher-symposium-no-compelling-interest-no-reason-not-to-say-so/