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Roger Clegg: The Contradictions in the Obama Administration’s Brief Supporting Racial Preferences

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by Publius
Posted August 14, 2012, 7:52 AM

At Bench Memos, Roger Clegg analyzes the Obama administration's support of the University of Texas' affirmative action policy:

Here’s the amicus brief it filed today with the Supreme Court in Fisher v. University of Texas.

The brief is riddled with contradictions. It argues that the University of Texas was not trying to achieve proportional representation in a way tied to the state’s demographics, but then argues repeatedly that it was perfectly all right for the state to do exactly that. It argues that such proportional representation is extremely important, but then suggests that race is weighed so lightly that it is apparently just an accident that this representation comes about. The brief repeatedly says that having substantial numbers of this or that group is essential to reassure those in that group that the university is open to all — but surely this is just the “discrimination for its own sake” that Justice Powell rejected in Bakke. It argues that the university is not pursuing “classroom diversity,” but then quickly concludes that “the university’s consideration of classroom-diversity figures is therefore entirely consistent with [the Court’s earlier decision in] Grutter.”

A big chunk of the brief is devoted to documenting that the Obama administration itself likes diversity in its own programs: in the military, in law-enforcement and national-security hiring, and in training health-care professionals. The Bush administration, at oral arguments in the University of Michigan cases in 2003, denied that the military thought that our enlisted men would follow their officers only if they had the right skin color, and rightly so. It’s also very unclear what the connection is between those the federal government hires and trains, and what the racial makeup of their school was (that is, even if the Obama administration loves quotas, it can use them whether or not our universities do). It’s unlikely, by the way, that the federal government is allowed to discriminate in its employment practices, even if universities are allowed to discriminate in their admissions; different statutes apply. In any event, the brief is focusing on very specialized jobs (the brief rightly puts the Department of Commerce’s claim that it “has an interest in . . . promoting diversity among the leaders of commercial enterprises” in a footnote), and hardly justifies racial preferences in undergraduate admissions.

There’s also a great deal that is not in the brief. In particular, the main objections to racial preferences are simply ignored. For example, the increasing problem of discrimination against Asian Americans is relegated to one technical footnote. The word “mismatch” does not appear in the brief at all (this is a particularly glaring omission given the fact that the brief emphasizes the need for more “diversity” in the health-care professions, yet the mismatch problem has been shown to be particularly severe in the STEM area). It is especially odd that the increasingly obvious costs of racial preferences are ignored, when the brief concedes that there is a problem if the “costs [of the use of racial preferences] outweighs its benefits.”

President Obama, in the context of the Boy Scouts last week, issued a statement that said “he opposes discrimination in all forms.” That’s not true.

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