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EDITORIAL: Discrimination by another name

The Supreme Court has another opportunity to strike it down

- The Washington Times - Friday, June 14, 2013

The Supreme Court has a new opportunity to set aside a government program that long ago passed its "sell by" date. In Fisher v. University of Texas, the court can strike a blow for good racial relations as well.

Abigail Fisher brought a lawsuit against the University of Texas for denying her admission to the university on the basis of race. The university allows lesser-qualified students who didn't graduate near the top of their high school class to enroll anyway, but only if they are included in a minority. Miss Fisher, who lived in Sugar Land, Texas, near Houston, is white.

More than a century ago, humorist Finley Peter Dunne observed that, "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns," colorfully observing that justices have tailored their interpretations of the law to follow social and political trends and accommodate public opinion. The observation remains valid today, and here it could encourage the right outcome.

Decades after the imposition of affirmative action, Americans have come to realize that discriminatory admissions policies of any kind are inherently wrong. A Washington Post-ABC News poll published Wednesday found that 76 percent of Americans polled say colleges and universities taking race into account in selecting prospective students use a measurement that has outlived its usefulness. There was no difference between whites and blacks in the response.

Both races now see that however well-intended, affirmative action has a corrosive effect on how black and white get along. Those hurt by what is called "reverse discrimination" — it's correctly called just "discrimination" — resent being thus passed over. Qualified minority applicants suffer the assumption, false and unfair, that they didn't earn their place through hard work and determination.

Justices can remedy this, and damage to the law, by throwing out the University of Texas affirmative-action policy. They should find an early opportunity to throw out Grutter v. Bollinger as well, the 2003 ruling approving the policy of the University of Michigan Law School to use race as a factor in admissions.

In the wake of a 1995 Supreme Court ruling on government racial preferences and quotas, President Clinton said of affirmative action, "Mend it, don't end it." Clever, but not the right thing to do, either. This was cover for continuing racial preferences in one form or another.

Justice Elena Kagan, President Obama's appointee, has recused herself because she was involved in the Fisher case during her time as solicitor general. Recusing one of the liberal justices improves the betting odds slightly (not that anyone would bet on a Supreme Court decision) of the court coming to the right decision, but it also raises the possibility of the court deadlocked at 4 to 4, which would leave the affirmative-action policy standing. That would be unfortunate. A colorblind court should be colorblind, and end something that can't be mended.

The Washington Times

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