Why Racial Preferences May Be Here to Stay
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Why Racial Preferences May Be Here to Stay


Yesterday the Supreme Court sent a key affirmative action case, Fisher v. University of Texas, back to the lower court for tougher scrutiny.

The court returned the case to the 5th Circuit Court of Appeals “with orders to require the university to prove that ‘available, race-neutral alternatives do not suffice’ to prove enough diversity,” says Stuart Taylor, Jr., a top legal journalist and author of the recent book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won't Admit It.

Yet the ruling on Monday is being bandied about as a win by both sides.


After the 7-1 ruling, Abigail Fisher, the young white woman who sued the University of Texas at Austin in 2008 for denying her admission based on its policy of racial preferences, said, “I am very confident U.T. won’t be able to use race as a factor in admissions in the future.”

Civil rights groups across the country also claimed victory. The NAACP said, “(We’re) pleased that equal opportunity in education was preserved by the Supreme Court.” Sherrilyn Ifill, head of the group’s legal defense and educational fund, added, “We’re gratified that the court has essentially upheld that framework.”

Who’s right? Who’s wrong? It’s tricky. Here’s why.

Taylor, in an interview with The Fiscal Times after the ruling, said that Justice Anthony Kennedy, in his majority opinion, “wasn’t criticizing the University of Texas’s program as much as he was criticizing the lower court for not giving it stricter scrutiny. Essentially he wants them to run it through their process one more time,” more rigorously. “The lower court can’t just rubber stamp the university’s practices in admissions decisions.

“That said, it’s not quite clear what the University of Texas will have to prove in order to satisfy Justice Kennedy,” Taylor added. “He doesn’t give much insight into that. The university did what it could to show justification for its racial preferences.”

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Taylor – a critic of using large racial preferences to make decisions about which students get spots at colleges and universities and which don’t – has a number of worries associated with the case, and with the use of racial preferences overall.

“First, I hope this case opens the way for a healthy shift of focus away from legal abstractions and toward the growing body of evidence that large preferences harm many intended beneficiaries and reduce socioeconomic diversity,” he said. Taylor and Mismatch coauthor Richard Sander cite evidence in their book that once admitted because of race, many minority students simply can’t keep up – so their educational outcomes are actually worse. 

“I’m talking about 200, 300, even 400-point SAT gaps between the white kids and the blacks inside the same university, with the Asians even higher than the whites,” said Taylor. “The schools have been going to great lengths to bring in students who are minimally qualified to attend their universities because they want to get that diversity.”

His second worry regards the prohibitive cost of any future lawsuits on this issue – which is why he believes racial preferences in admissions decisions are here to stay for the foreseeable future.

“They (the lawsuits) are expensive. Most kids who might think about filing them want to get on with their lives. Filing a lawsuit also invites a lot of hostile attention to whoever the plaintive is. Abigail Fisher’s been run through the mill… that would (give pause) to others. It’s going to be even more expensive than it was in this case to bring future lawsuits and it’s unclear where the money would come from to finance them.” 

Finally, said Taylor, “Though almost everybody uses the term affirmative action, the public doesn’t understand that affirmative action boils down to racial preferences. That means: We’ll take this one ahead that one, because this one is black and that one is Asian. Just about every selective college in the country, with the possible exception of a few private Christian colleges, is systematically advancing black and Hispanic kids ahead of similarly situated white and Asian kids with better grades and board scores.”

Will the universities tweak what they’re doing in light of Monday’s decision? 

“They’re already doing a fair amount of that,” said Taylor. “In the Texas system, they supposedly have socioeconomic preferences. They have preferences for students with a single mom. They can produce data on how many people from each category they’ll get with the racial preference, and presumably how many fewer they would get if they didn’t use racial preferences. It’s a complicated business to try to draw a principled line on how much racial preference is ‘too much.’”

After Monday’s ruling by the High Court, Taylor says that “the universities are all breathing a big sigh of relief. They were afraid this decision might require them to make some changes. I don’t think anybody watching the case seriously believed the court was going to ban the use of racial preferences – but I did think it might require those preferences to be not so pervasive. Now I think the universities think they don’t have to change a thing.”