Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed by Pacific Legal Foundation that urged the Court to grant review in Fisher II.

In my contribution to this symposium, I’m going to discuss how the Supreme Court should apply “strict scrutiny” to the use of racial and ethnic preferences in university admissions.  I will assume here that the door will be left ajar for this kind of discrimination, but must note briefly at the outset that I think the door should be shut on it, as I discussed at more length in the symposium for Fisher v. University of Texas at Austin’s earlier trip to the Court.  I noted then that there is no adequate answer to what ought to be the fundamental question in these cases:  “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?”

Until the happy day when the door is slammed, though, a school should be required to answer two simple questions in order for its use of racial and ethnic preferences to be narrowly tailored: (a) What, precisely, are the educational benefits that the school wants to achieve for its particular student body, and how are they “compelling”?; and (b) how, exactly, is there no way to achieve these benefits except by using racial and ethnic preferences in admissions?

The nature and extent of the educational benefits in using race in admissions will vary among schools and disciplines, so this has to be explored in order to ensure that the use of race is narrowly tailored.  For example, the educational benefits of using racial preferences in admissions to a graduate chemistry program are going to be different from admissions to a law school, and both will be different from those in an English or anthropology class.

Thus, a linguistics department might believe that it is valuable to have a student body that includes students who grew up being familiar with a variety of different dialects.  This will be a different – and perhaps more plausible – educational benefit than, for example, a physics department could point to.  But the linguistics department would also have to take care to ensure that students with preferred racial or ethnic backgrounds actually had that familiarity, and that it would also consider that familiarity if it were possessed by a particular white student.  That is, the use of race and ethnicity would not be narrowly tailored if it gave a preference to an African-American or Latino student who knew nothing except standard English; likewise, the school ought to be willing to give special consideration to a white student – or, of course, an Asian-American student (our multiracial nation’s most rapidly growing group and, increasingly, the victim of this politically correct discrimination, by the way) – whose personal upbringing had given her expertise in an unusual dialect of one sort or other.

Candidly, I doubt that there will be many if any instances where it makes sense to weigh race per se in admissions, rather than looking directly for the quality in the individual that will supply the educational benefit.  But, in all events, the school should be required to identify the educational benefit and then explain why it is compelling and why considering race per se is necessary in order to attain it.

Some schools may argue that – while they can point to no such educational benefit in any particular discipline, nor even identify any race-correlated perspective or experience it wants generally shared – there is an overall educational benefit in students learning how to interact with students of different racial and ethnic backgrounds.  But such a general claim should be looked at very suspiciously, since it would justify the permanent and malleable imposition of racial and ethnic discrimination in admissions.  This claim is especially dubious when a school –  such as the university in this case – will certainly have a substantial degree of racial and ethnic diversity without the use of preferences.  Such a school should not be able to justify discrimination by saying, “But this particular black student(s) is a little different from most of the other black students we admit because of some quality X.”  There will always be that quality X, since no two human beings are exactly alike.

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Now, it may be objected that this framework, while it seems logical enough, is unacceptable because it is so rigorous that few schools’ use of racial and ethnic preferences will be able to pass muster if it is used.  Indeed, it might (horrors!) require documentation of the educational benefits that will result from those random interracial conversations I wrote about in the last Fisher symposium and mentioned above.  And of course my off-the-cuff reaction is:  Great.

But there is more to be said in its defense than just that.

I think that this rigor is entirely consistent with Justice Anthony Kennedy’s opinion last time around, as I discussed here right after it was handed down.  And I’m not alone.  For example, Arthur Coleman, a former deputy in the Office for Civil Rights at the Education Department in the Clinton administration, agrees that each particular school should be required to do a lot of narrow tailoring “homework,” as he puts it.  It’s a “myth” that each school “can rely on another college’s research”:  “Mr. Coleman urged colleges that consider race not to lean on the research and rationale behind other institutions’ race-conscious admissions practices. What worked for the University of Michigan at Ann Arbor might not make sense, legally or otherwise, on your campus. ‘Every institution has to roll up its sleeves and do the hard work,’ he said.”

The rigorous approach is also necessary because schools can’t be trusted.

You would think that, as the twenty-five-year clock set by Grutter v. Bollinger has been ticking, universities that use racial and ethnic preferences would be weaning themselves off them. But this isn’t happening, as studies conducted by the Center for Equal Opportunity show. Our post-Grutter study of undergraduate admissions at the University of Wisconsin found the severest discrimination that we’ve ever seen, before or after Grutter. We found the worst law-school discrimination we ever saw at Arizona State, also post-Grutter. We likewise found severe law-school discrimination and undergrad discrimination in, respectively, Nebraska and Ohio post-Grutter. And we found law, undergrad, and med-school discrimination even at the University of Michigan (before voters banned it) – and indeed worse undergrad discrimination than there was in the system that the Supreme Court struck down in Gratz v. Bollinger, on the same day it upheld the discrimination in Grutter.  Fewer schools may be using preferences – many states have banned them, and most other schools don’t use them since they are nonselective, and the sky has not fallen there, showing they are unnecessary – but those that continue have doubled down.

Nor have things improved after Fisher I.  That case required universities to reevaluate their use of racially selective admissions policies; presumably, if the costs of racial preferences were found to outweigh the purported benefits, or if less discriminatory means could achieve similar results, the discrimination would have to stop.  Consider one obvious potential cost, much discussed in the run-up to Fisher I:  Recent empirical research provides strong evidence that racial preferences cause significant harm to the very students who are supposedly the beneficiaries of racial admission preferences.   Even if some academics continue, in the face of all this evidence, to dispute the “mismatch” effect, Fisher I should have required that universities at least consider these potential costs and determine that the benefits of racial preferences outweigh them.

There is, however, no evidence that universities have undertaken this type of introspection in the wake of Fisher I.  To the contrary: Last year, the Center for Equal Opportunity sent public records requests to twenty-two public universities seeking information detailing how the institutions had considered the costs of their racially selective admissions policies after Fisher. In particular, CEO sought to find out how the universities had considered the mismatch effect on their students. Astonishingly, half (eleven) of those institutions responded that they had zero documents responsive to the request.

The response at the remaining eleven universities was no better. Two universities sent documents that likewise confirmed that they had failed to consider the costs of mismatch at their schools. Seven of the institutions refused to honor the request – saying it failed to meet their requirements for some reason or another. One university quoted a price for searching for the documents that was too expensive for CEO – even though CEO engaged in extensive attempts to negotiate around the cost difficulty. The last request went to the University of Texas itself, which is still going back and forth with CEO on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars likewise asked universities for documents confirming that they had considered the costs of racial preferences, and investigated race-neutral methods of achieving the same benefits. NAS’s requests met the same fate. Not a single university responded with documents showing it had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing it had seriously considered the costs of their racially preferential admissions policies.

That’s not enough bad faith for you?  Well, how about this:  Stanford and Yale are destroying student records that would likely open them to charges of illegal racial discrimination.  See this news story in the Chronicle of Higher Education.   Still not enough?  Well, consider here and here and here and here for more examples of bad faith.

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Clearly the Court must do something stronger than just warn schools — for the fourth time, after  Regents of the University of California v. Bakke and after Gratz v. Bollinger and after Fisher I – 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.  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 as one part of assessing the individual’s whole background – 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.

Posted in Fisher v. University of Texas at Austin, Featured, Fisher II symposium

Recommended Citation: Roger Clegg, Symposium: Getting serious about racial discrimination, SCOTUSblog (Sep. 8, 2015, 3:38 PM),