An End to Racial Preferences?

Henry Wolff, American Renaissance, February 23, 2012

The Supreme Court could undo decades of mischief.

In 2003, 25 years after its last major decision on racial preferences, the Supreme Court ruled on two such cases involving the University of Michigan. In Gratz v. Bollinger, the court decided the university’s undergraduate admissions policy of granting 20 additional points (on a scale of 47 to 150) to non-Asian minorities was unconstitutional. The court’s 6-3 majority agreed that the points-based preference system “ensures that the diversity contributions of applicants cannot be individually assessed” and was therefore too rigid.

The same day, in the case of Grutter v. Bollinger, the court upheld U-M’s law school admissions policy that considered race as part of a “holistic” evaluation of the applicant. Justice O’Connor, writing for the 5-4 majority, argued that “diversity” is such a compelling interest that public universities may discriminate against whites and Asians in order to achieve it. Justice O’Connor wrote that obtaining a “critical mass” of minorities would help ensure “the educational benefits that flow from a diverse student body.”

While on the surface, the two rulings appeared to limit the scope of affirmative action, Jared Taylor argued that they actually made things worse. The “rigid” system giving minorities 20 extra points was at least honest. Whites knew exactly how much discrimination they faced. The law school’s discrimination, which the court found constitutional, was shrouded in “holistic” mumbo jumbo that kept it completely out of sight. Mr. Taylor predicted that if the University’s undergraduate admissions took this underhanded, back-room approach, it would be worse for whites.

As Steve Farron noted in the January 2007 issue of American Renaissance, that is exactly what happened. After controlling for in-state/out-of-state residence, sex, and alumni connections, in 1999, a black undergraduate applicant to the University of Michigan was 27 times more likely to be admitted than a white student with the same SAT score, high school grades, and background. Two years after the Gratz and Grutter decisions, black applicants were 71 times more likely to be admitted than equivalent whites. As Prof. Farron pointed out, “the median combined verbal and math SAT scores of undergraduates admitted in 2005 was 1160 for blacks, 1260 for Hispanics, 1350 for whites, and 1400 for Asians (scores run from 400 to 1600).” The university had replaced honest discrimination with dishonest discrimination that was even more egregious, and that amounted to racial quotas.

Justice O’Connor noted in the Grutter decision that “It would be a sad day indeed, were America to become a quota ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all . . . We expect that in twenty-five years from now, the use of racial preferences will no longer be necessary.”

Of course, race realists know that these preferences will always be necessary to achieve “diversity,” but there is hope that the era of racial preferences will come to an end before that 25-year mark. On Tuesday, the Supreme Court agreed to hear a case that questions the basis of the Grutter decision and may lead to the court limiting, or even overturning, that precedent.

In Fisher v. University of Texas, a white student named Abigail Fisher argues that she was denied admission to the University of Texas because of her race. In 1996, the Fifth Circuit Court ruled in Hopwood v. Texas that “the University of Texas School of Law may not use race as a factor in deciding which applicants to admit.” To circumvent the ruling, the Texas legislature (and “conservative” Governor George W. Bush) passed the “Top Ten Percent Law,” whereby students in the top 10 percent of each high school’s graduating class are automatically admitted to the Texas public university system. In theory, the law is race-neutral, but in practice it is not, since the same 10 percent rule that is applied to high-achieving college prep schools is also applied to miserable inner-city schools. This policy accounted for the admission of the majority of students at the University of Texas.

When the 2003 Grutter decision overturned the Hopwood ruling, the University of Texas decided to increase diversity beyond what could be achieved with the Top Ten Percent Law by considering the race of the students who did not make the 10 percent cutoff. As a result, in 2005, University of Texas at Austin was fifth in the nation in granting undergraduate degrees to non-whites. Miss Fisher fell just outside her school’s top ten percent, and the University of Texas rejected her in 2008.

A federal district court and a three judge panel from the Fifth Circuit ruled in favor of the University of Texas, reasoning that the university’s admissions policy conforms to the guidelines of Grutter. The Fifth Circuit voted not to hear the case en banc, and Miss Fisher appealed to the Supreme Court last year.

Miss Fisher’s lawyers have asked the court first to consider whether the university’s admissions policies even meet the guidelines of Grutter. The university insists on racial diversity not just in admissions, but in majors and classrooms. Miss Fisher’s lawyers say this is “blatant racial balancing” and violates Grutter. It is possible, therefore, that the court could simply decide the university’s policies do not meet the standards established in Grutter without revisiting that case.

There is reason to believe, however, that the court will narrow the scope, if not outright overturn, Grutter. Justice O’Connor has retired from the court and has been replaced by Justice Alito, who has voted with conservative judges on cases involving racial classification by the government. As for the other justices, in a 2007 case involving the role race could play in assigning children to schools, Chief Justice Roberts wrote that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Justices Alito, Scalia, and Thomas agreed, while Justice Kennedy filed a concurring opinion that invalidated the racial balancing programs, but preserved the right of school districts to consider race in some instances. Justice Kagan, who would undoubtedly vote to preserve or even extend racial preferences, has recused herself from Fischer because she was involved in the case when she served as solicitor general.

The current lineup of justices could therefore overturn Grutter. And if the court decides public universities may not use racial preferences, this prohibition would extend to most private universities under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in institutions that receive federal funding. And as Adam Liptak, Supreme Court correspondent for the New York Times, noted “If the diversity rationale falls apart in university admissions, it could start to test the societal commitment to it in other arenas, notably private hiring and promotion.”

Opening arguments are set to take place this October, just before the presidential elections. President Obama’s chief spokesman Jay Carney was asked to comment on the Supreme Court’s decision to hear the Fisher case:

President Obama has said that, while he opposes quotas, and thinks an emphasis on universal and not race-specific programs is good policy, considering race along with other factors can be appropriate in certain circumstances. But again, I want to make sure that’s viewed as a broad statement of where he has been and where his position is broadly, not a reference to this specific case.

This case could set the stage for a very interesting, racially charged election season.

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Henry Wolff
Henry Wolff is the assistant editor of American Renaissance.
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  • Racism against Whites will never be over. It is too entrenched. 60+ years of it almost from forced integration as a result of Brown V. Board of Education.

    Affirmative action led to the creation of an artificial black middle class of government busybodies participating in industry-squelching and freedom-obliterating agencies like EEOC. Without these artificial jobs and the steering and set-asides on government contracts I’d say at least 30 percent of the blacks, the few of them who have jobs, are unemployed in an instant.
    How much more so for all the Affirmative Action hires and Celebrate Diversity positions? Would and black or hispanic legitimately hold a job without affirmative action?

    Over 40 percent of blacks and 30 percent of hispanics use some form of welfare and in many cases many forms of it. If the public school with its Head Start breakfasts and Hot Lunch and increasingly hot dinners didn’t exist, a majority of black and hispanic kids wouldn’t be eating. Imagine the rioting that would happen one day, if as said, the 40 percent of blacks and the 30 percent of hispanics on all sorts of welfare programs didn’t get the welfare money? Didn’t get the unwarranted admittance to a college, the unmerited job?

    All of these programs exist to further Democrat political goals and to keep the non-Whites from rioting. Period. They are not going anywhere until the system collapses upon itself.

    The entire nation will be like those cities that have blacks and hispanics take them over. The police forces become corrupt. The schools become dangerous and it is impossible to learn in them. Basic services like firefighting and sanitation are severely degraded or ended entirely. As all of this happens, the Whites who pay for it all leave and the city is ruined. The Whites are “leaving” the country in a physical way from violence and in a figurative way by being out-bred and out-immigrated. So the entirety of America, without dramatic changes, will be similar to say, Baltimore or Camden or the entire state of California or Detroit or East Saint Louis or…

  • Oil Can Harry

    Back in 1963 Whitney Young, the head of the Urban League, claimed we needed affirmative action for  10 years until blacks would ‘catch up’ to whites.

    40 years later Sandra Day O’Connor made the equally dubious claim that we need it for just another 25 years at which point the races will be equal.

    When the races are still found to be unequal in in 2028 what will the new timeline be? And how many whites will still be falling for this ruse?


  • Eagle_Eyed

    “the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all . . . We expect that in twenty-five years from now, the use of racial preferences will no longer be necessary.”

    Marxist theory argued that if man could be conditioned (by eliminating capitalism) into rejecting personal property and accept a sort of communal sharing, he would eventually no longer want private property and thus all selfishness, greed, desire, envy, etc. would soon disappear–leaving everyone equal.  To be blunt, marxists ignored and/or misread basic human nature, to quite fatal consequences in the USSR and Cuba.

    Similarly, cultural marxists on race tend to believe that the only differences between the races are caused by societal differences–whether it be racism, lack of opportunities, “white privilege”, etc.  Lost is the concept that some ethnic groups of people may be better intellectually than other groups.  O’Connor, without any evidence to the contrary, releases bile in this opinion that may have worse consequences than anything done by the Soviets.  Let us hope this is overturned.

  • Robert Binion

    “Coerced, uniformity of thought makes us truly diverse.”–the Wise Latina

  • slobotnavich

    We should all demand statistically racially equal representation in all occupations, trades, and professions.

    For example, 13% of neuro-surgeons should be black, 13% of corporate CEOs, 13% of airline pilots, 13% of physics professors, 13% of all military officers of all ranks, 13% of all CIA operatives, etc.

    Only then will we enjoy the full potential of a truly multi-racial-ethnic-cultural society.  And, of course, we’d have to release a great majority of prison inmates to bring equal racial representation into line in our penal system.

  • The disparity is intellectual, not economic, making parity impossible.

  • I doubt we can use the Fisher case as an accurate gauge on how this SCOTUS comprised of these members (Kagan has recused herself in Fisher) will rule on future matters that involve stated racial classifications.  Like I said a few days ago here in AR, the Top 10% thing in Texas isn’t explicitly racial (even though it ends up being a form of racial AA).  However, conservative jurists avoid disparate impact legal rationales like the plague.

  • Gen__Lee

    On last night there was a poll asking if race should be considered in university admissions. Fully 86% of the respondents (there were over 100,000) said race should NOT be factored in. Again, this was on! If the U Michigan decision is not overturned, will anyone still pretend that out justice system is at all representative of American society? Not with a straight face.

  • razorrare

    How can any White person sacrifice the interest of their own White children  for the interest of other non-White children,at the altar of Affirmative Action is beyond me.It is written that the only unforgivable sin is blasphemy against the Holy Spirit….i would add another..the rose pink sentimentalism of Whites who care so much about the suffering of others that they ignore the suffering of their own .

  • DavidLAlbert

    When do we, as a race, realize that it is past the time to negotiate, compromise, haggle, or try to be “political”? There is no compromise when the “people” you negotiate with twist the truth and fabricate lies and distortions to justify their goals. We will not be given quarter! We will be slaughtered – because that’s what they do. I can see a future of skinning squirrels and boiling creek water!  It sounds primitive, but that’s where we are headed!

    • You could not have said it any better.  That is the issue, how can we avail ourselves of the system to redress our grievances when the system is corrupt and does not intend for us or our culture to survive?

  • sbuffalonative

    At the time I said Gutter solved nothing. All it did was say race could be used as a criteria for admission but overt quotas were illegal. Apparently, it has even made things worse.

    I don’t know how much out of court social fraternizing goes on after hours. Is Justice O’Connor still in contact with current members of the court? If so, will she be an advocate for her own ruling? I have to believe she will be interested in seeing her ’25 year’ remark  upheld or even extended as she argued in an option piece.

    While I’m hopeful, I won’t be counting the chickens before they hatch.

  • Beyond the case law and precedent setting, there is still something wrong at the University of Texas.  That school must be infested with Marxists. For example, there is a fairly good sized contingent of radical Islamists there that can be seen regularly, active in campus affairs.  Is this not odd?  Or has the state of Texas changed so much as the other states that now are “minority” states?