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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.

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What’s the historical justification for that difference?

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As for the “diversity” rationale, it is becoming more and more problematic to justify using race and ethnicity as a proxy for people’s perspectives and experiences – or to identify students from disadvantaged backgrounds. There are of course many white and Asian students who come from disadvantaged backgrounds, and many African Americans and Latinos who do not. 

In fact, a frequently cited pro-racial preference book – “The Shape of the River” by William G. Bowen and Derek Bok – acknowledged that 86 percent of the African American students admitted to the schools it surveyed (selective colleges and universities using affirmative action) had “middle” or “high” socioeconomic status. Only 14 percent came from “low” socioeconomic backgrounds.

Even if there are some marginal educational benefits for students from greater “diversity,” they are few and thin compared to the substantial costs – costs, that is, from institutionalizing racial discrimination that must be borne by society as a whole, the universities, and the students themselves.

For example, empirical evidence has come to light that among the victims of admission preferences for blacks and Latinos are...blacks and Latinos. That is, by mismatching students and institutions, students are set up for failure. A study by UCLA Law School Professor Richard Sander found there would be more African Americans in the legal profession if affirmative action weren’t routing students to schools that aren’t a good academic fit – and from which, too often, they don’t graduate.

The use of racial preferences is simply wrong, for a host of reasons, including: It is personally unfair; it can stigmatize the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it compromises the academic mission of the university; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and how to establish group membership.

One constant is that racial preferences remain very unpopular. A recent Rasmussen poll found 55 percent of Americans saying they were against “affirmative action” in college admissions, with only 24 percent for, and 21 percent undecided. If the question had been about “racial preferences” – a less ambiguous term – presumably the survey would have shown even greater unpopularity.

The face of America is changing, and it is untenable to be sorting Americans by skin color in a nation that is becoming more and more multiracial and multiethnic.

The justifications for such discrimination have grown weaker, and the costs more apparent. And many Americans, to their credit, are fed up with it. The Supreme Court should rule in favor of Abigail Fisher and tell universities that they must stop judging applicants by the color of their skin and their national origin: The nation’s long-term health demands it.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, and Joshua Thompson is an attorney with Pacific Legal Foundation. In the Fisher case, the Pacific Legal Foundation has filed an amicus brief, which the Center for Equal Opportunity joined, urging the Supreme Court to outlaw race-based preferences and discrimination in university admissions.


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