Race Discrimination in College Admissions Should Be Forbidden, Once and for All

Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice.  Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute.  And in Regents of the University of California v. Bakke(1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.

Yesterday, the Court listened to argument for a second time in Fisher v. University of Texas. Far from “fixing” higher education in Bakke, the Court has generated nearly 40 years of litigation over affirmative action.  Two states figuring prominently in that legacy of litigation—California and Michigan—have enacted laws prohibiting the use of racial criteria in college admissions.  This is ironic because UT relies on the Grutter v. Bollinger(2003) decision—involving the University of Michigan—to justify its use of racial preferences in admissions.  Voters in Michigan effectively overruled Grutter in a 2006 referendum that was upheld by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action (2014).

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