The issue presented by Fisher v. University of Texas is whether a state university should give preference to some applicants on the basis of their race and thereby disadvantage other applicants on the basis of their race. For most people, at least outside of academia, the answer is clear: Race preference is obviously inconsistent with the American ideal that all persons are equal before the law and are to be treated as individuals, not as members of racial groups. It is inconsistent with the Supreme Court’s decision in Brown v. Board of Education holding, everyone thought, that all race discrimination by government is unconstitutional. It is inconsistent with Title VI of the 1964 Civil Rights Act, which prohibits race discrimination by any institution, such as the University of Texas, that receives federal funds.

The purpose of the university’s race preference program is to admit blacks and Mexican-Americans who do not meet the university’s ordinary admission standards. The program effectively adopts as official university policy the view that members of these groups cannot meet and cannot be expected to meet standards applicable to others. One unfortunate result of the policy is to raise the question, as in The Bell Curve, of group racial differences, a question that a policy of race neutrality thankfully makes irrelevant. It also necessarily raises a question as to and tends to demean the achievements of every member of the group.

What can the university hope to gain by a race preference program that can justify its costs? The “diversity” rationale for such programs — the claim that they benefit not the preferred students, but the school — is hard to take seriously. There is no reason to think, and no real empirical basis for the claim, that substituting a few under-qualified blacks and Mexican-Americans for better-qualified whites and Asians in a classroom or school improves anyone’s education. There are studies indicating that the opposite is true.

Nor can race preference programs be justified (the Supreme Court has held that they cannot be) as a remedy for disadvantage. If disadvantage were the concern, disadvantage would be the criterion. Race is not a proxy for disadvantage, because not all and not only blacks (or Mexican-Americans) have suffered disadvantage. In any event, racially preferential admission to selective institutions of higher education is not a program for the disadvantaged, but almost always only for the most advantaged. Indeed, today many of the preferred blacks come from the upper classes in Africa and the Caribbean. The UT Law School never denied a black preferential admission because he or she was not disadvantaged or was exceptionally advantaged. The result is that a racially preferred applicant with professional-class parents of high economic status will be granted admission while a better-qualified non-preferred applicant with working-class parents with at most a high school education is denied admission — the justice of which is difficult for most people to see.

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Apart from all questions of principle or morality, the use of race preference in higher education must be rejected on the purely practical ground that the gaps in academic competitiveness that are involved are too great to be ignored or overcome. The source of the problem, as of all our racial problems, is the grim fact that the average black 12th grader performs at the level of the average white eighth grader in reading and math, making high school graduation a more serious problem for many than admission to a selective college. The average black college applicant scores about 200 points lower than the average white or Asian on the SAT, reflecting the average four-year deficiency in academic achievement. Rather than addressing this problem, racially preferential admission programs pretend that it doesn’t exist. Perhaps most discouraging, blacks from families with annual incomes in the highest economic quintile, score lower on the SAT than whites from families with incomes in the lowest quintile (849 vs. 869 in 1995). Further, the gap has actually increased in the last 10 years, not decreased as Justice Sandra Day O’Connor stated in her opinion for the Court in Grutter, the Michigan law school case, making her statement that preferences can be expected to end in 25 years pure fantasy.

Of the 10,500 blacks who took the LSAT in January 2002, 29 scored at or above the 92nd percentile, a very good score, but not good enough for admission to one of the top half-dozen schools, where the median LSAT is at or above the 98th percentile. At this level of qualification, the number of eligible blacks approaches zero. Former Harvard President Derek Bok’s estimate that without preferences the number of blacks at selective schools would drop to less than 1.5 percent was probably an overestimate.

The dispositive argument against racially preferential admission in higher education, however, is or ought to be that its primary effect is not to increase participation by blacks, but to create a mismatch by placing blacks in selective schools at least one level above the schools that they are fully qualified to attend. Blacks fully qualified to attend the selective University of Texas law school, for example, may find themselves instead in the much more selective Yale law school where they will be at an academic disadvantage. To meet a self-imposed quota, Texas will then admit underqualified blacks who would otherwise attend less selective schools.

It has now become clear that race preference admission programs typically do not operate to the preferred student’s advantage. Their relatively poor qualification — of which they are often unaware — usually leads to relatively poor performance, the bottom portion of the class and an increased dropout rate. Studies have shown what common sense indicates, that blacks (like everyone else) do better in terms of grades, graduation rates, admission to graduate schools and bar passage rates in schools for which they are fully competitive than in schools for which they are not.

A well-known study by law professor Richard Sander at UCLA concludes that “the production of black lawyers would rise significantly and blacks would be significantly better off” if law schools did not practice race discrimination. The nation has spent billions of dollars to encourage blacks and Latinos to study science and engineering — with very little success. Yet there is an easy way to do it — abolish preferential admission to selective schools. A study shows that blacks and Latinos actually sign up for science and engineering in good numbers, but then get discouraged and drop out when they can not keep up with the class because they are underqualified. When they can keep up in a less selective school, the chances are much better that they will graduate. If facilitating the movement of blacks into the economic and educational mainstream is the objective, racially preferential college and university admission is not merely unhelpful, but counterproductive.

Racial preferences send blacks the message they least need to hear, that they cannot and will not have to compete academically with whites and Asians. Perhaps the most harmful result is that it tends to create an expectation of a general “black exemption” from ordinary obligations and requirements. If blacks may properly be exempted from compliance with college and university admission requirements applicable to others, why may they not also be exempted from compliance with other requirements? That cannot, however, be the way to interracial harmony, integration and respect. A society in which it is generally understood that blacks cannot be expected to conform to the rules applicable to whites is a society in which blacks and whites will not be able to live together. Racial preference in higher education is a prescription for unending racial conflict and hostility as white and Asian parents will never cease to protest having their children place at a disadvantage in admission to selective schools.

Lino Graglia is the A. W. Walker Centennial Chair in Law at the University of Texas School of Law

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