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Fisher and the obsession with racial preferences

Fisher and the obsession with racial preferences

A follow up to the Supreme Court’s decision in Fisher v. U. Texas.

John Yoo writes at National Review (emphasis mine):

Some conservatives are probably taking heart that the Court, by seven to one, reversed the lower court, which had upheld UT’s explicit use of racial preferences in its undergraduate admissions process….

But put me down on the pessimistic side of the ledger. I think this is a setback for the cause of returning the nation to the color-blind principles of the Declaration of Independence and the Constitution. For a majority of the Court, it seems to me, continues to agree that “diversity” in higher education is a compelling government interest that survives the strictest of scrutiny by the courts. Until Grutter v. Bollinger, the 2003 case that blessed affirmative action in university admissions, the Court had found that the only time classifying by race could qualify as a compelling government interest was in wartime — and that was in the Japanese internment case, Korematsu. To compare diversity in higher education to the nation’s ability to defend itself in wartime showed how mistaken the Court was in Grutter.

But in Fisher, the Court declined to reconsider this terrible mistake. Instead, the Court returned the case for further proceedings because it wants the lower court to seriously examine whether any individual affirmative-action program was “narrowly tailored” to achieving the goal of racial diversity in higher education. This left the basic law of Grutter unchanged and only ensures that challenges to affirmative action will focus on the ways that schools measure an applicant’s skin color, but not on the unconstitutionality of using skin color at all.

Liberal judges know that they have university administrators on their side. There is no value in the university setting that holds the allegiance of faculty more than affirmative action. Universities will sacrifice almost anything to protect and preserve racial preferences….

Some evidence of how proponents of using race in admissions view the result as a victory is this press statement emailed by NY Attorney General Eric Schneiderman immediately after the decision (emphasis mine):

“We are pleased that today’s decision preserves the vital principle that fostering racial diversity in education is a compelling interest critical to the future of the States and our Nation. While we are disappointed the Supreme Court did not affirm the Fifth Circuit’s decision, we are also pleased that the Supreme Court confirmed that courts should defer to a university’s judgment on the educational benefits of a diverse environment, and made clear that a university need not exhaust other alternatives before considering race in admissions.”

The obsession with race will not go away in academia, and ways will be found to preserve racial preferences unless and until the practice of practicing racism is outlawed.


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Yoo was indeed about the most pessimistic on the Fisher ruling I read. Truthfully, I was not expecting the Court to outlaw affirmative action in Fisher once they granted cert to another case for next term.

I agree with you wholeheartedly though, there is no way academia surrenders willingly their obsession with race. Perhaps Ilya Somin was a bit more optimistic they might be more vulnerable to lawsuits after Fisher decision. I’d bet they’d need to be sued within an inch of their lives before it would even dawn on them to find another solution.

healthguyfsu | July 1, 2013 at 11:17 pm

AA is absolutely sickening. I remember seeing minority students in our lab sit there and openly profess how they only need to get such and such score because of their race to get into med school or dent school or wherever they were aiming for.

This is nothing to be proud of…it essentially says we don’t expect you to be as smart as the other races but we’ve picked you anyway because you are the best your race has to offer even if it is lesser based purely on the color of your skin and family history.

    Ragspierre in reply to healthguyfsu. | July 1, 2013 at 11:31 pm

    “…we’ve picked you anyway because you are the best your race has to offer even if it is lesser based purely on the color of your skin…”

    Politely, bullshit. The best the HUMAN race has to offer? Is THAT what you meant?

    Nor could you have meant that very fine people of all races would not successfully compete on merit. Men like Ben Carson or women like Barbara Jordan.

    You didn’t mean that. Right?

      Valerie in reply to Ragspierre. | July 2, 2013 at 12:13 am

      Rudyard Kipling had it right:

      …But there is neither East nor West, nor Border, nor Breed nor Birth, when two strong men stand face to face, tho they come from the ends of the earth.

        Ragspierre in reply to Valerie. | July 2, 2013 at 8:08 am

        My father, a pretty good amateur historian, said that racial prejudice was never much of a factor in the true frontier period. If you had a good man at your back…or a good woman…that was all you considered.

      mzk in reply to Ragspierre. | July 2, 2013 at 1:53 am

      I believe you completely misunderstood his comment. He wasn’t being racist; he was pointing out that the presimes of Affirmative Action are racist.

        Ragspierre in reply to mzk. | July 2, 2013 at 8:05 am

        Could be. Gave that some thought. Still…

        And that is not how the policy works, anyhow.

        The best and brightest will always be represented.

        It is how you treat people toward the middle of the bell-curve that your discrimination comes in.

In the late 60s and early 70s, I thought we would soon be done with all this racial nonsense.

And, it is true, we have made great strides in some respects.

In others, such as racial and gender discrimination codified in law, regulation, and policy, we are in retrograde.

Who would have believed this 40 years ago?

And who would have believed it would be the “enlightened” who would be the darkest, most bitter of those standing at the school door, demanding that we continue to judge by the color of skin, or our gender?

Carol Herman | July 1, 2013 at 11:26 pm

Drudge carried the headline today that a Rasmussen poll shows Americans holding the Supreme Court in very low regard. Only 30% of those asked, thought the Supreme Court was doing a satisfactory job. A majority of Americans have lost faith in the Supreme Court. That should be devastating. Do you remember when judges were held in high regard?

    txantimedia in reply to Carol Herman. | July 1, 2013 at 11:55 pm

    I always chuckle when I read things like this. People seem to cling to a romantic notion that it was somehow better in the good ole days. Yet our country has struggled with these same issues for its entire existence.

    Gallup has 34% for today, but it was just 39% in 1991, and 45% in 1972. Opinions vacillate like the wind.

    People say our politicians are more partisan now than at any time in our history. You should read some of the things they said about Thomas Jefferson back in the day.

    Here’s a taste for you.

    Tories called colonial American patriots “zealots of anarchy”. . . “Those who . . . hate[] their country” who “multiply with the fecundity of their own rattle-snakes” . . . “blusterers” and “criminals.”

    Patriots’ ideas were characterized as “seditious” . . . “falsehood maintained by fraud” . . . “Madness. . . misrule, uproar, violence, and confusion” . . . “airy bursts of malevolence” . . . “insolence” . . . “frenzy.”

    Tory Samuel Johnson (who was then receiving regular payments from the Crown) came up with this gem: The views of the colonists, he said, were “antipatriotric prejudices [which] are the abortions of folly impregnated by faction.”

    We’ve been here before.

    GrumpyOne in reply to Carol Herman. | July 2, 2013 at 8:15 am

    The Roberts “decision” to endorse O’bammycare was the beginning of the public opinion spiral downward and ever since, the majority of one has been neutralized with regard to a “conservative” court.

    Just what will it take to reverse the overall trend? Will we really have to hit bottom?? Is there a knight on a white horse out there to ride in and save us??? From the way things appear now, I don’t think so…

With all due respect, the original Constitution of the United States was not colorblind, and neither were our Founding Fathers.

I, for one, am proud of our ancestors, who recognized the evils of slavery and got rid of it in our country well before most of the rest of the world. But we should not pretend that the original document was color-blind.

    n.n in reply to Valerie. | July 2, 2013 at 2:27 am

    Where does our national charter, The Declaration of Independence, make reference to a citizen’s “color”?

    Where does our constitution make reference to a citizen’s “color”?

    There is a single, specific reference to Indians, who are not taxed, for the purpose of representation, otherwise both documents are colorblind. In fact, both documents are notably forward-looking compared to modern documents (e.g. South African constitution) with the same purpose.

      Ragspierre in reply to n.n. | July 2, 2013 at 8:38 am

      You and Val are talking past each other.

      She’s right. The only reason the Constitution could be ratified is because we accommodated slavery in some states.

      But some of the Founders were remarkably NOT bigots, and believed in the truly avant garde notion that men of different races were just men, and should be equals under the law.

      txantimedia in reply to n.n. | July 2, 2013 at 8:42 am

      Wow! Do that not teach this in school any more?

      Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

      You’re technically correct. The Constitution does not mention color. But my God, man, we fought a civil war and added three amendments to the Constitution over the issue.

        Valerie in reply to txantimedia. | July 2, 2013 at 10:59 am

        Thank you, guys. I thought everybody knew this.

        william_newman in reply to txantimedia. | July 2, 2013 at 11:49 am

        Formally the Constitutional language is about indenture, not just the hereditary racial slavery special case. At the time indenture wasn’t quite the forgotten dead letter that it is today. Note that Benjamin Franklin’s autobiography treats it as perfectly ordinary that his father bound him into servitude for some years. And I don’t think I have ever read the numbers, but apparently a large number of early colonists paid for their Atlantic passage by entering into years of indenture. I also know that indenture was sometimes a criminal punishment, though I have no clear idea how common that was.

        I don’t mean this as an excuse for slavery or an apology for the callousness of the founders, more as a cynical observation about doublespeak and doublethink. The founders knew full well that in practice they were signing off on a system of hereditary racial oppression for other people, not something to be applied to their descendants. But they could do it with facially neutral general language because they judged — in hindsight quite correctly — that given the stable political and military coalitions of the time, people in their ethnic group were at no significant risk of being classed as hereditary slaves even without constitutional protection.

Their obsession and exploitation of racial differences to advance political, economic, and social standing has delayed integration well beyond its natural threshold. Not only has it divided Americans along tribal lines, but it also sponsors development of prejudice in succeeding generations.

Here’s Richard Rothstein of Berkeley’s take which mirrors the push of the Regional Equity and Building One America Movement .

The emphasis of Ginsburg and Rothstein that segregation itself is what is not permissable mirrors john a powell’s description of integration from a little known 2002 conference at Chapel Hill. I described it here

Since I wrote that it has become apparent that this theory of integration is a big part of how this Administration is quietly shifting federal revenue sharing to force the states and localities to plan their economies around Green Energy and No Disproportionality Among Groups since federal dollars are driving the Agenda. This federally mandated economic vision for the future is called the Acceleration Agenda.

With a 2nd Building One America conference in DC in July this new pursuit is still cranking up to be Diversity on Steroids.

Uncle Samuel | July 2, 2013 at 7:23 am

Time for a truly COLOR BLIND America, that does not exempt persons of any color from moral and legal accountability, and does not promote, vote or admit the unqualified to positions and programs they can abuse or use for looting.

That is what we have done even with our highest office.

With disastrous results.

The Book of Proverbs warns about this.

    Uncle Samuel in reply to Uncle Samuel. | July 2, 2013 at 7:24 am


    Time for a truly COLOR BLIND America, that does not exempt persons of any color from moral and legal accountability, and does not promote, vote or admit the unqualified to positions and programs they can abuse or use for looting, *political agenda, cronyism and racial partisanship.*

      Midwest Rhino in reply to Uncle Samuel. | July 2, 2013 at 8:46 am

      yeah, they separated the church from the state, not just because of the “religious” aspect (I suppose). Rather because it would have allowed strong groups to co-opt the purposes of carefully crafted limited government, with its separate branches.

      The current “church of government unions” and their “solidarity oath”, or the “AA Church ONLY for Minorities”, should also qualify to be separated from government as church like entities, with religious like beliefs.

      Instead we get Bishop Lois Lerner, throwing the recalcitrants into the iron maiden of IRS torture. We get Pope Obama throwing Zimmerman to the lions, to incite his base. We get Trumka and Stern meeting at the White House to organize their union armies’ attacks on our freedoms.

Midwest Rhino | July 2, 2013 at 8:28 am

The courts (with the executive and congress colluding) essentially mandated sensitivity training for all white Americans, who might dare to think our WASPy forefathers had a better idea.

One nation under God, with Equal opportunity, and federalism to decentralize power to the lowest level possible. ALL such ideals most be equivocated away by the statists, to corral the people back under the rule of centralized powers.

On a side note here, my recent exposure to current college students (Yale, Brown, Northwestern, Wash U) and recent college grads (at work) shows a wonderful diversity of color and race. What it doesn’t show is a wonderful diversity of thought. They are all liberal.

This is very different from the time I was in college, over 25 years ago.

    Ragspierre in reply to Miata Shinsen. | July 2, 2013 at 11:17 am

    Yep. There is nothing so homogenized as the indoctrinated.

    And pretty much nothing so intolerant as the “tolerant”.

    If they could manage to see themselves for the lock-stepping little drones they are, they would be appalled.

    Given a few years, some few will have that vision.

In practical terms, what did the decision in Fisher v U Texas actually do for/to Fisher?

    Ragspierre in reply to J Motes. | July 2, 2013 at 11:19 am

    It gave her back her day in court, which is kinda huge. It also set a pretty high bar for UT, and all other islands of racial discrimination.

    Well, and it created a demand for a new class of testifying experts. So, it was a job-creator…

      J Motes in reply to Ragspierre. | July 2, 2013 at 12:05 pm

      Well, I guess an abstract result is better than none at all. I was hoping for something concrete, more like Bakke’s reverse discrimination case in 1978:
      “Regents of the University of California v. Bakke, 438 U.S. 265 (1978) was a landmark decision by the Supreme Court of the United States that ruled unconstitutional the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for “Blacks,” “Chicanos,” “Asians,” and “American Indians” (and established a separate admissions process for those 16 spaces).”

      Thanks to this decision, Bakke was admitted to the medical school (and is a practicing anesthesiologist today), and I believe that overt quota systems were banned (although we all know that covert quotas are still in effect, but just not defined as such). I guess Fisher, who was better qualified than others who were admitted, is still out in the cold.

      It doesn’t seem that Bakke’s case really changed much, in real-world terms. Better-qualified candidates are still be rejected in favor of less-qualified candidates on the basis of race or ethnicity. I long for the days when actual ability was the standard.