How much longer will the Grutter racial preferences regime last?

The U.S. Supreme Court has before it a petition for certiorari in the race discrimination suit brought by Asian-American students against Harvard. I hope the Court agrees to hear the case.

If the Court doesn’t, it will be a while before another opportunity arises to review the issue of race-based preferences in college admissions. By that time, the Court’s composition might not be as conservative as it is now. In any event, colleges throughout America will have blatantly discriminated against tens of thousands more Asian-Americans and Whites.

Keep in mind that it’s very difficult to litigate a race discrimination in admissions case against a college or university. These cases involve huge amounts of discovery. They take years to litigate. The Harvard case, which is just now before the Supreme Court on petition for cert, was filed in 2014.

Now that Joe Biden controls the Justice Department, the federal government isn’t going to pursue such cases. To my knowledge, only the indefatigable Edward Blum occupies this field.

That’s why there have been so few of these cases. As far as I’m aware, since the Supreme Court upheld the University of Michigan law school’s race-based preferences in 2003, the only court of appeals decisions on the matter have been Fisher 1, Fisher 2 (both involving the University of Texas), and Students for Fair for Admissions v. Harvard (the case now before the Supreme Court).

If the Court declines to hear the Harvard case, when might the next opportunity arise? There’s a case against Yale. The Trump Justice Department filed it, the Biden DOJ withdrew it, and Blum’s group has taken it on. However, this case is stayed pending the outcome of Harvard’s. Discovery hasn’t even commenced. If the Harvard case is any indication, it will be six or seven years before Yale’s reaches the Supreme Court.

Blum’s group has a case against the University of North Carolina that’s further along. My understanding is that, in an optimistic scenario, it will be ready for Supreme Court review by 2024. In a pessimistic scenario, the district court judge (an Obama appointee) and the Fourth Circuit Court of Appeals (controlled by liberals) will drag their heels the way the Ninth Circuit did in the Wal-Mart Stores v. Dukes litigation (a high-profile pay discrimination class action case). Both courts will have every incentive to do so, especially if they foresee the composition of the Supreme Court changing in favor of the left.

Thus, it might be 2025, conceivably even 2026, before the Supreme Court has another opportunity to revisit Grutter. In the meantime, colleges will make tens of thousands of admissions decisions that would have come out differently but for the race of the applicants (and but for the Supreme Court allowing race to be the deciding factor).

Every one of those decisions will harm people. Those rejected because of their race will be unjustly denied admission. Those selected because of their race will be mismatched with their college if they accept its offer and enroll. Many of those who are mismatched will end up majoring in easier, less rewarding subjects than the ones they originally intended to study. If they were properly matched with their institution they would thrive in their preferred areas of study, including science and engineering.

And even Blacks who are admitted without being preferred due to their race may have to overcome the stigma of being viewed, albeit incorrectly, as beneficiaries of preferences.

The Grutter Court envisaged a world in which race-based admissions policies faded away and, indeed, were a thing of the past in 25 years. This expectation was always unrealistic, and so it has proven to be.

Racial discrimination by colleges and universities is now more prevalent, not less. For example, this year, perhaps because Princeton was emboldened by the outcome (so far) of the Harvard case, 68 percent of U.S. citizens or permanent residents in the admitted group at Princeton self-identified as people of color, including biracial and multiracial students. By contrast, Whites make up half of all students in American public schools.

At Yale, black applicants in the fourth decile from the bottom are admitted at a rate of 12 percent — about the same rate at which Asians in the tenth decile (the top one) are admitted. The admission rates for Whites and Asians in the fourth decile are just 2 percent and 2.5 percent, respectively.

The Supreme Court helped create this skewed and grossly unfair regime in the Bakke case. It effectively blessed it in Grutter, but with the stated expectation (or maybe the hope) that it wouldn’t last.

It has lasted and gotten worse. Now is the time for the Supreme Court to end the Grutter regime by hearing the Harvard case and reversing the court of appeals decision.

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