Loyal readers of Inside Higher Ed, and especially those who read the comments after its diversity-related articles, know that I don’t like racial preferences. They can -- and should -- read here and here and here how I’ve urged the Supreme Court to rule in Fisher v. University of Texas. They should also make generous year-end donations to the Center for Equal Opportunity, as I’m pretty sure the Supreme Court has already mandated that.
But rather than rehash my views on racial preferences, I thought today I would discuss in broad terms how this issue might play out by giving straight answers and making fearless predictions on a series of questions that are critical to that discussion. Here we go.
How will the Fisher litigation end? The University of Texas will lose. A majority of the Supreme Court will vote against the university, and there won’t be a remand. The decision will be broad enough to make it harder for higher education institutions to continue the use of racial preferences, but alas, it will not foreclose them altogether.
All of that is tentative, of course. It’s possible that the university could win, in a couple of ways. There might be an affirmance of the Fifth Circuit’s decision upholding the institution’s use of racial preferences by an equally divided Supreme Court, if Justice Anthony M. Kennedy decides that he’s sick of the case and votes with the three liberals. (Justice Elena Kagan is recused.) Or there might be a remand for a full trial, and the university might win there, and the inevitable appeal might fail, and the Supreme Court could refuse further review.
On the other hand, it’s also possible that the Supreme Court will not only rule against UT when it hands down its decision but also overturn its unfortunate 5-4 decision in Grutter v. Bollinger in 2003 and declare that racial preferences in college and university admissions are illegal, period. That’s what I’m hoping for.
Barring that happy outcome, however, the end of the Fisher litigation will not mean the end of the struggle. So we have to ask and answer some more questions.
Will lawsuits continue even after Fisher? Of course. Two already have been filed: one against Harvard University and another against the University of North Carolina at Chapel Hill. There will probably be more.
Our side is not going to give up. We really don’t like racial discrimination and what political correctness in all its manifestations is doing to our country.
And the outcome in Fisher cannot possibly result in insulating the use of racial preferences at other colleges and universities from legal challenges. Justice Kagan is recused, remember. The best the left can hope for is a 4-4 vote that will leave the state of the law essentially unchanged.
Who will win the presidential election in 2016? Barring my dream decision in Fisher, that’s what is really important, because it will determine the shape of the judiciary, and in particular the Supreme Court. If a Republican wins, then there’s a good chance that in a few years there will be a majority of justices willing to overturn Grutter. If Hillary Clinton wins, then an overturning of Grutter becomes much less likely for the foreseeable future, once Justices Kennedy, Antonin Scalia and Clarence Thomas are replaced by her appointment of Justices Lani Guinier, Che Guevara and Bill Clinton.
Fortunately, however, our next president will in fact be Marco Rubio, and he will nominate two excellent justices -- replacing Justices Stephen G. Breyer and Ruth Bader Ginsburg with Justices Ted Cruz and Hans von Spakovsky -- whom the Republican-controlled Senate will quickly confirm. President Rubio will also name Donald Trump as U.S. representative to the United Nations, by the way.
Will the public ever accept racial preferences in college and university admissions? No. Of course not. Parents don’t like to see their children treated differently because of their skin color or what country their ancestors came from. That’s not going to change, no matter how unhappy that makes Lee Bollinger or his evil twin, Al Sharpton.
Will college and university officials ever voluntarily renounce racial preferences? No. I mean, are you kidding? Have you seen how these people have reacted to the student protests lately, and then you ask if they are voluntarily going to get rid of racial preferences? Sheesh, what a stupid question.
Will the political process ban racial preferences? It has in some states, and it could in other states. It’s even possible that Congress could ban them -- but that would take a Republican president and strong Republican majorities in both houses, and a spine among Republican politicians heretofore completely lacking when it comes to this issue. So don’t hold your breath.
So, in summary, what are the possible scenarios? The use of racial preferences will end when the Supreme Court rules against them (or if the relevant political bodies ban them).
When that happens, there will still be programs that result in racial and ethnic diversity -- more or less legally (by race-neutral means like top 10 percent plans, aggressive recruiting, ending legacy preferences and the like) and more or less illegally (by admission officials outright cheating or by their smuggling racial considerations into their “holistic” review of applicants). But don’t get me wrong -- there will be much, much less of racial preference if it is driven completely underground in this way, so I’m all for it.
Conversely, the use of racial preferences will continue so long as courts and the political branches allow it. The academic culture is too politically correct for that to change in the foreseeable future.
At oral argument this week -- in addressing the reaction to his carefully wrought opinion saying that colleges and universities had to show that they had tried really, really hard to achieve the educational benefits of diversity without using racial preferences before they could use racial preferences -- Justice Kennedy lamented, “It is as if nothing happened.”
Sorry, Justice Kennedy, but that’s right, and it encapsulates a truth even broader than you might have meant: don’t expect university officials to operate in good faith on this issue. Unless you prohibit racial preferences, their use of race will remain heavy-handed and mechanical. The only way to get the nuanced and highly individualized use of race that you (and Justice Sandra Day O’Connor before you and Justice Lewis F. Powell before her) want is to ban them outright.
It doesn’t matter how unpopular racial preferences are or how ineffective or counterproductive or unfair or stigmatizing or divisive. College and university officials don’t care.
And that’s not a fearless prediction -- that’s just the way it is.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, which opposes racial preferences in university admissions and joined an amicus brief supporting Abigail Fisher and filed by Pacific Legal Foundation.
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