Supreme Court Should End Government Racial Favoritism

“Mend it, don’t end it.”

That’s what the apologists for race-based “affirmative action” said back in the 1990s when the Supreme Court began to rule against explicit quotas in college admissions and government hiring.

Leftists on the Supreme Court agreed and, in decisions such as Grutter v. Bollinger, allowed government benefits based upon race to continue to be doled out, albeit in disguised ways.

New litigation before the Supreme Court ought to put an end to this unconstitutional practice. Judicial Watch joined with the Allied Educational Foundation (AEF) to file an amici curiae brief with the U.S. Supreme Court asking it to overturn the U.S. Appeals Court for the Fifth Circuit decision, which allowed the continued practice of denying applicants admission to the University of Texas at Austin (UT) based upon race and ethnicity preferences.

The September 10 Judicial Watch and AEF brief supports the claim of Abigail Noel Fisher, arguing that the raced-based admissions policies at issue here are irrational, destructive and are based upon illegitimate racial theories that have no basis in biology.

The new amici brief states: "The decision by the U.S. Court of Appeals for the Fifth Circuit raises important issues of constitutional law that should be addressed by this court.

In particular, amici are concerned that the Fifth Circuit’s ruling, if allowed to stand, will serve to increase racial polarization and resentment in this country, needlessly perpetuating a destructive focus on “racial” issues and prolonging the misconception that race is a valid or legitimate concept.

Amici argue that, ultimately, the only mention of race in the law should be its prohibition. Any divergence from this principle must be extraordinarily narrow, and for remedial purposes only."

Judicial Watch and AEF cite the American Anthropological Association’s position that racial categories only perpetuate misinformation and irrational beliefs about others:

“Race” thus evolved as a worldview, a body of prejudgments that distorts our ideas about human differences and group behavior. Racial beliefs constitute myths about the diversity in the human species and about the abilities and behavior of people homogenized into “racial” categories.

Presumably, to get around the thorny question of figuring out race based upon parentage, biology, and appearance, the UT policy at issue allows applicants to self-identify their race, which is also a flawed process, to distinguish applicants.

Do you recall Rachel Dolezal, the NAACP Spokane chapter president who self-identified as “black” despite apparently having only “white” heritage? Could Dolezal receive special treatment from UT because she decided to dress and act “black?"

Again, as our brief quite charitably notes: "Answering the question of whether Rachel Dolezal would qualify as “black” under affirmative action policies (and if not, why not) further exposes the confusion that reliance on 'self-identification' can produce."

The amici brief urges the Supreme Court to excise racial considerations from government decision making: "Ultimately, the only way to treat the illegitimate concept of race is to absolutely prohibit its use as a basis for government decisions affecting individuals or groups of individuals. Conveniently, such a prohibition is precisely what the Constitution already requires."

In 2008, Abigail Fisher, a Texas resident who was denied admission to UT based upon these racial policies, and her former co-plaintiff, Rachel Multer Michalewicz, filed suit against UT, alleging that the university had violated the Equal Protection Clause of the 14th Amendment.

In January 2011, after the U.S. Court of Appeals for the Fifth Circuit ruled in favor of UT, Fisher appealed the decision to the U.S. Supreme Court. In a June 2013, 7-1 ruling, the high court vacated the Fifth Circuit’s ruling and ordered it to review the case again.

Despite the Supreme Court’s ruling, however, in July 2014, a Fifth Circuit three-judge panel again upheld the UT race-based admissions policies in a 2-1 decision that suggested that UT (and other colleges and universities) “may use race and ethnicity not only in pursuit of an undefined ‘critical mass’ of diversity, but also ‘in its search for holistic diversity.’”

In November 2014, the full Fifth Circuit declined to rehear the case, prompting Fisher to petition the Supreme Court in February 2015. The Supreme Court granted cert. and is now considering the merits of Fisher’s constitutional claim.

Judicial Watch has a long history with this case, as this is actually the fourth amici brief we have filed with AEF in the Fisher civil rights litigation. Prior briefs are available here, here, and here.

Let me close by praising Fisher, who has persistently fought for years to vindicate her rights under the Constitution. She is an American hero.

Tom Fitton is the president of Judicial Watch. He is a nationally recognized expert on government corruption. A former talk radio and television host and analyst, Tom is well known across the country as a national spokesperson for the conservative cause. He has been quoted in Time, Vanity Fair, The Washington Post, The New York Times, and most every other major newspaper in the country. For more of his reports, Go Here Now.