In response to this week’s Supreme Court’s decision that raised the legal standards race-based preferential admissions policy must meet in order to survive judicial scrutiny, I suggested, facetiously, that I might come out of retirement to litigate such cases. But this assumes that rejected white applicants will bring suits against universities they believe have discriminated against them.
Stuart Taylor does not believe they will. Neither does David Bernstein. After all, it’s expensive and time consuming to litigate against a state university, and most rejected college applicants just want to get on with their lives. Moreover, it may be difficult for the rejected applicant to prove that he or she would have been admitted absent the discriminatory policy.
But Ilya Somin is more optimistic, and so am I. Somin notes that, given the high volume of rejected applicants every year, only a tiny percentage of them need litigate in order to maintain the flow of challenges.
Moreover, we live in a litigious society, and one in which students (and their parents) tend to take college rejection quite personally. This is particularly true when the rejection comes from a state university funded by taxes paid by said parents.
As for the burden of litigation, Somin notes that conservative and libertarian public interest law firms and philanthropists have financed challenges to racial preferences in the past. Presumably, they will be even more willing to do so now that the Supreme Court has increased the odds of prevailing.
Finally, Somin points out that, in order to prevail and obtain relief, a plaintiff need not prove that he or she would have been admitted in the absence of the university’s race-based admissions policy. The remedies available to a prevailing plaintiff in the absence of proof that he or she would have been admitted include an end to the discriminatory policy, which is what most such plaintiffs will be aiming for.
So I think we will see more of these suits. I’m not coming out of retirement though.
An additional exchange between Somin and Taylor can be found here.
JOHN adds: And what about Asian students? They are harmed more than any other group by racial discrimination in education. I frankly can’t understand why there hasn’t already been a major movement among Asian-Americans for equal rights in academia. It seems inconceivable to me that this rank discrimination will be tolerated indefinitely, and I expect that future challenges are as likely to be mounted by Asian-American students as by whites.