At a recent Heritage Foundation event, several distinguished lawyers and law experts had an exciting and at times contentious panel debate over the possibility of the U.S. Supreme Court putting the case of Fisher vs. University of Texas , which involves racial considerations in college admissions, on the docket. University of San Diego professor Gail Heriot and Roger Clegg of the Center for Equal Opportunity made the case for the plaintiff, who alleges that she was denied admission to the university solely because she was a Caucasian.
Prof. Heriot explained that race-based admissions only hinders, not helps, minorities excel and obtain science or engineering jobs, saying that “many are called [but] few succeed.” She believes that minority students are placed at a greater disadvantage at universities due to race-based admissions, since some of their SAT scores come in lower than those of whites and Asians, which leads to an unfair competitive advantage for the other two groups.
To tell the University of Texas’ side of the story the Heritage Foundation presented James Ho and Loren AliKhan, both practicing lawyers. AliKhan claimed that the University of Texas’ race-based admissions was diluted and did not favor one race over another, because the application is split up into seven parts. James Ho said he believes that conservatives should not support the hearing of this case before the Supreme Court because conservatives should not support big government (a.k.a. Supreme Court or federal judiciary) intervention in a state decision involving the University of Texas. He also cited the unpredictability of judges’ decisions, which could reverse recent gains for conservatives, and that appointments like that of Justice Samuel Alito to the Supreme Court will not reverse precedents granted by the Grutter case, which allowed universities to consider race in admissions, but not as the only consideration.
The rebuttals kept flowing as panelists went into the intricacies of the Fisher vs. Texas case. Heriot attacked the argument that the Supreme Court will not hear the case because the lawsuit was not brought as a class-action lawsuit. The plaintiff demands repayment for her application expenses of up to $100, which Heriot saw as a traditional argument that many lawyers neglect to realize, a not-so-subtle poke at the opposition. AliKhan responded by stating the argument is invalid by way of the damages sought by the plaintiff, since most applicants know when they apply that their fees will never be reimbursed. She also disputed the validity of contesting Texas’ admissions process because it is an independent institution that will, in time, re-evaluate and change the criteria on its own without outside interference from the Supreme Court.
Clegg felt that it was “ludicrous” to let universities re-evaluate on their own because some feel they are “dispassionate” institutions of learning. He pointed out that universities “are not to be trusted,” along with state and local governments, because all these parties have shown the inability to be fair judges of racial preference decision-making. He also concluded that by not hearing this case, it sets a “dubious” moral and legal precedence for future application practices by lowering academic standards and mismatching students and universities, among other reasons. He quipped that racial preferences could be used today to rationalize segregation, based on the opposing argument that race-based admissions are in fact race-neutral. Ho attacked Fisher’s argument in the same way as AliKhan, saying that procedurally she will not be compensated for admission application fees because accepted students do not get reimbursed upon admittance. He illustrated his point about the necessity of racial preferences by referring to Justice Anthony Kennedy, who in the Grutter case specifically stated that diversity is an important issue and should be considered in the admissions process.
Spencer Irvine is an intern at the Heritage Foundation.
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