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Supreme Court: After health care ruling, court must rule against affirmative action

Another blockbuster case will follow the Supreme Court ruling on the health care law known as Obamacare. Next term the court will hear Fisher v. University of Texas at Austin. The court should tell universities they must stop judging applicants by the color of their skin and national origin.

By Roger Clegg and Joshua Thompson / June 21, 2012

Two policemen talk in front of the US Supreme Court in Washington June 18. A ruling in the landmark US health care case (Obamacare) is expected soon. Op-ed contributors Roger Clegg and Joshua Thompson discuss a blockbuster case the court will hear next term that affects 'the health of our multiracial society.'

Kevin Lamarque/Reuters


Falls Church, Va. and Sacramento, Calif.

The US Supreme Court will soon decide one of the most consequential cases in years – the challenge to the new federal health care law, often known as Obamacare.

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But right behind it comes another blockbuster case.

Next term the court will hear Fisher v. University of Texas at Austin. Health is still the issue – but this time, it’s the health of our multiracial society. Will the public sector – and public universities in particular – finally move beyond a fixation with race, and start treating all people as individuals, not color-coded statistics?

At UT-Austin, admissions directors favor the race-based spreadsheet approach. Race is a criterion in undergraduate admissions – with favoritism for African-Americans and Hispanics – in an effort to achieve a pre-determined mix, or “diversity.” Abigail Fisher, a white female, was denied admission, and she’s suing because she was not evaluated on an equal basis with applicants from other backgrounds.

The court was correct to take this case. It needs to clarify, once and for all, whether the need for “diversity” justifies universities treating individuals differently because of their race.

When the court last considered this issue, in a pair of University of Michigan cases in 2003, it struck down racial preferences in one case but narrowly upheld them in the other. In the latter, Justice Sandra Day O’Connor warned, “We expect that 25 years from now, the use of racial preferences will no longer be necessary...”

So the court was – rather oddly, to be sure – announcing only a temporary waiver of students’ right not to be discriminated against on the basis of skin color and what country their ancestors came from. Since a third of the time allowed for in Justice O’Connor’s projection has passed, it makes sense for the court to revisit the matter.

Studies provide ample evidence that universities are not weaning themselves away from this discrimination. To the contrary: A study last fall of the University of Wisconsin by the Center for Equal Opportunity found the most pronounced undergraduate admissions discrimination the center had ever seen. Recent studies show that law school discrimination at UW and elsewhere is severe, too. Studies of medical school admissions have reached the same conclusion.

At one time, affirmative action was designed to benefit African Americans recently subjected to Jim Crow, over whites who had been the segregated system’s beneficiaries. But now, more and more, it is Asians (our fastest growing ethnic group) who are discriminated against in favor of Latinos (our largest minority). At the University of Texas, for instance, in 2009, admitted Asians had an average SAT score 197 points higher than the average score for admitted Hispanics.


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