Scholars ask supreme court to revisit Fisher and rationales for racial preferences

April 2015

New York (March 16, 2015) -The National Association of Scholars (NAS) has joined a petition to the Supreme Court to hearFisher v. University of Texasonce again. This appeal challenges the right of a public university to use racial preferences in student admissions.

Signing on as a friend-of-the-courtin a brief filed by the Pacific Legal Foundation, the Center for Equal Opportunity (CEO), Project 21, and the American Civil Rights Institute, the NAS called on the Court to review theFishercase "to make it clear that the use of race in admissions must be supported by clear, coherent goals, adopted after all other means of achieving racial diversity have been tried and shown to be unsuccessful."

In June 2013, the Supreme Court decided thatFisherwould be remanded back to the Fifth Circuit and that the burden would rest on universities to demonstrate that they have exhausted race-neutral means of achieving racial diversity in admissions.

Under that decision, public institutions may use race as a factor in admissions policies only as a last resort when all other possibilities have proven unsuccessful, and they must also demonstrate that they have tried other such means.

Justice Kennedy delivered the opinion in Fisher (quotingBakke), enunciating a "strict scrutiny" Standard for colleges seeking to increase racial diversity: "a university must clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the [racial or ethnic] classification is necessary . . . to the accomplishment of its purpose.'"

As a follow-up to the decision in that case, the NAS and fellow amicus CEO have sent public disclosure requests to select public universities to ascertain whether college admissions programs are in compliance with the Supreme Court's "strict scrutiny" requirement. Rather than demonstrating their conformity to this standard, these universities have resisted public accountability and sought to keep their admissions practices concealed.

"Universities, when they do reply to requests in response to public disclosure laws, often refer to official statements on their websites stating compliance with the Supreme Court's rulings. But they always find ways to avoid producing responsive documents, as they are legally obliged to do. Instead, they act as if they have something to hide," said NAS public affairs director Glenn Ricketts, who has worked with NAS members and state affiliates to request this information.

At other universities, CEO studies from previous years show that admissions are deeply discriminatory on the basis of race. For example, at the University of Wisconsin-Madison in 2007 and 2008, "Black and Hispanic applicants were preferred at ratios of between 500 and 1500 to 1 over both Asian and white applicants."

In his article, "Why Racial Preferences Are Wrong," NAS president Peter Wood wrote:

Racial preference are profoundly unfair. We are a society founded on the truth that all men are created equal. Our history as a nation is in a large part a history of striving to better live up to this truth. Racial preferences move in the opposite direction by treating some individuals as worthy of preferred treatment merely because of racial attribution.