Once upon a time, those who favored racial and ethnic preferences in college admissions at least admitted that their goal was to help certain minority applicants who they argued were underrepresented due to a legacy of discrimination and other social ills. This is an appealing and well-meaning goal, even if such government preferences tended to reward a subset of minority students who were not disadvantaged and harm other students who were less well off—and raised a host of other moral and constitutional problems.
When the Supreme Court ruled squarely, in the 1980s and 1990s, that government could only use race-conscious measures to remedy its own past racial discrimination and could not do so to provide proportional representation or to address other social ills, the proponents of preferential treatment turned to other theories to justify the continuation of such programs.
Thus, the diversity rationale was promoted for college admissions under the theory that an undefined “critical mass” of certain minority students was necessary for all students to learn important lessons. In the case that approved this rationale, Grutter v. Bollinger (2003), Chief Justice Rehnquist effectively demonstrated in his dissent that what was really going on at the University of Michigan was a strict adherence to proportional representation. But no matter. Five justices approved the theory by which, at least in Michigan, black and Hispanic students (but apparently not Asians and Middle Easterners) could be used to help educate the rest of their classmates.
But what should be the result if the growing social science evidence shows that the racial and ethnic preferences being employed in selective colleges significantly harm the minority students who receive them (in contrast to minority and other students who are admitted without preferential treatment)? For those who have opposed racial preferences for moral and constitutional reasons and always thought that they were counterproductive, the evidence confirms their observations and points to the need for effective school choice and other strategies at the K-12 level to help more students reach their full potential.
Those who have long supported discriminatory preferences face a real dilemma when data show that most who are admitted with SAT scores 150 points or more below a school’s mean perform, sadly, pretty much as expected. They tend to get poor grades, drop out of science and other difficult majors at much higher rates, have significantly lower bar passage rates, and drop out at a high rate. Some of the same studies suggest minority students would graduate at the same rate, get the same grades, pass the bar at the same rate, etc., if they simply went to colleges that admitted them without preferential treatment.
Such studies are summarized in two amicus briefs filed in the Supreme Court in Fisher v. University of Texas, a case the High Court will soon decide whether to hear. The University of Texas has greatly increased its use of racial and ethnic preferences since the Grutter decision, even though the university president had previously bragged that a state-wide “ten percent” plan and other measures made a resort to more race-conscious preferences unnecessary. The two amicus briefs on the harmful effects of preferences on minorities were filed on behalf of three commissioners on the U.S. Commission on Civil Rights (including me) and for Professor Rick Sander and Stuart Taylor, Jr., and discussed in George Will’s recent column on the case.
The Heritage Foundation will be sponsoring a debate on the Fisher case this Friday at 11:00 a.m., and my fellow civil rights commissioner, Gail Heriot, will discuss the social science data. That data suggest that minority students are significantly harmed by preferences and that there would be more black and Hispanic college graduates, scientists and other professionals without such preferences. The defenders of preferences will have to reply whether they will drop their support or whether they think it is worth the harm to these minority students so that other students may supposedly benefit.
Though my position on these matters is reasonably well known, I will be the scrupulously “fair and balanced” moderator for our public event on Friday at Heritage, which is co-sponsored with the Federalist Society’s Civil Rights Practice Group. Former Texas Solicitor General and counsel for the University of Texas, Jim Ho, will be joined by Loren Aikhan, who is counsel for the League of United Latin American Citizens. The opposing view will be presented by law professor and Commissioner, Gail Heriot, and Center for Equal Opportunity President Roger Clegg. Please join us in person on Friday from 11:00-12:30, or you can watch our live webcast at this link.
Todd Gaziano is Director of the Center for Legal & Judicial Studies at The Heritage Foundation, and was also appointed Commissioner on the U.S. Commission on Civil Rights upon the recommendation of House Speaker Boehner.
