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The Fight Against Affirmative Action Returns to the University of Texas

By  |  March 7, 2017, 04:15am  |  @josh_hammer


Close observers of U.S. Supreme Court litigation over the last five years are no doubt familiar with the trials and tribulations of one Abigail Fisher.  Miss Fisher, over the course of a lawsuit that seemed to last longer than the wait time for a kidney transplant in Toronto, sued the University of Texas at Austin over its race-conscious admissions policy and found her way up to the high Court twice.  In 2013, the supremes effectively punted on procedural grounds; just last term, in 2016, Justice Philosopher-King Anthony Kennedy disastrously held for a 4-3 Court that UT’s codified admission preferences, as applied in 2008 and factoring in race as part of a holistic determination, passed muster under the Fourteenth Amendment’s Equal Protection Clause.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts memorably wrote in his plurality opinion in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1; alas, due to yet another Justice Kennedy catastrophe, state-sanctioned racial discrimination was to remain the official admissions policy at UT.

But perhaps not for very much longer.  The group Students for Fair Admissions (“SFFA”), led by notable conservative legal provocateur Edward Blum and having previously already led affirmative action lawsuits against Harvard University and the University of North Carolina-Chapel Hill (gratuitous and tangential aside: “Go Duke” – me), has just launched a new website called UTNotFair.com.  SFFA, via UTNotFair.com, seeks to have those students who were disaffected by UT’s affirmative action policy share their stories in the hopes of eventually finding a plaintiff with whom to mount a fresh lawsuit.  Considering UT’s already-colorful history of having its affirmative action policies legally challenged and its high-profile status as the flagship institution of higher learning in the nation’s most iconic red state, such a suit would instantaneously attract national attention.

SFFA is basing the planned challenge on the fact that the 2016 Fisher case emphasized the need for UT to continually and conscientiously update its admission policies.  My fellow Texan and good friend Cory Liu, who I first met on Capitol Hill when we were legal interns for Sens. Ted Cruz (Cory) and Mike Lee (me), has recently volunteered to be SFFA’s new executive director.  Cory explained to me the theory behind wasting no time, post-Fisher, in vying to launch a fresh lawsuit against UT:

The Fisher decision [of 2016] took great pains to explain that it was narrowly limited to the admissions policy that existed when Abigail Fisher applied in 2008.  It has been almost ten years since that decision, and UT has changed its admissions policy to increase the percentage of students admitted through the holistic process that considers race.

Anti-affirmative action activists have plenty of reason to be excited about the potential legal success and symbolic heft of this new challenge.  Cory, who I have personally known for years to be passionate about this subject, put it to me this way:

My parents immigrated to Austin from China in 1987, just three years before I was born.  My mom worked at the UT cafeteria to pay her way through community college.  I grew up speaking a language other than English at home.  This is the story of millions of Asian-American families across this country.  But under UT’s racially discriminatory admissions policy, it is harder for an Asian student to be admitted than a white, black, or Hispanic student.

Naturally, Cory is right.  In fact, the extent to which Asian-Americans are severely discriminated against in the college admissions process today by affirmative action policies directly mirrors the more blatant anti-Jewish university quotas of last century.

SFFA is, of course, on the correct side of this issue.  State-sanctioned racial discrimination is here, there, and everywhere wrong and ought to be verboten—no matter how ostensibly “beneficial” the intended discrimination may be.  As Justice Clarence Thomas phrased it in his concurrence in the 1995 U.S. Supreme Court case of Adarand Constructors v. Peña:

These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle.  Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society… there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.  So called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.

Justice Thomas is right about the immorality of paternalistic “benign discrimination,” and my friend Cory Liu is right about the flagrantly unfair way against which contemporary Asian-American applicants are discriminated today.  State-sanctioned racial discrimination in university admissions simply must end.

I’m proud to stand with SFFA, and you should be, too.  If you know any students who have recently been disaffected by the University of Texas at Austin’s racially discriminatory admissions policy, have them visit UTNotFair.com.