Two members of the U.S. Commission on Civil Rights sent a letter last month warning lawyers at about 75 universities that "few, if any, college and university diversity admissions programs" would meet the test set by the Supreme Court in its ruling in Fisher v. Texas last June on affirmative action. The authors of the letter, Gail Heriot and Peter Kirsanow, are in a clear minority on the panel: they are an independent and Republican, respectively, while the other four current members are all Democrats, and President Obama has two remaining spots to fill.
The views they express in the letter -- which they made clear were delivered in their "capacity as individual commissioners" -- are consistent with what they have often said before in criticizing colleges' consideration of race in admissions, arguing both that it is illegal and that racial preferences "hurt, rather than help, their intended beneficiaries."
College officials questioned the approach taken by the letter writers. “A letter on Civil Rights Commission stationery from a couple members sharing their personal legal interpretation of the Fisher decision does nothing to help campuses deal with these thorny issues but it can easily confuse and mislead those officials who receive it about the Commission’s views," Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, said via email.
The civil rights commission had a discussion more than two years ago over whether it was appropriate for individual members of the panel to send correspondence on commission letterhead. The panel's members concluded that it was permitted as long as the letter writers made it clear they were not speaking on behalf of the panel.