ERIC HOLDER'S ONLY INTEREST

March 7, 2012

Later this year, the Supreme Court will review the constitutionality of the use of racial preferences in college admissions in the case of Fisher v. University of Texas. The battle lines will once again be drawn over the meaning of the equal-protection provisions of the Constitution. So it’s noteworthy that Attorney General Eric Holder has just made it clear he’s never bumped into a racial preference he didn’t like, and that he sees no time limit on such policies.

Last month, in an appearance at Columbia University, his alma mater, Holder made a jarring statement in support of racial preferences, saying he “can’t actually imagine a time in which the need for more diversity would ever cease.” “Affirmative action has been an issue since segregation practices,” he declared. “The question is not when does it end, but when does it begin. . . . When do people of color truly get the benefits to which they are entitled?”

Holder certainly made his statement on friendly territory. He was interviewed as part of a World Leaders Forum by Lee Bollinger, Columbia’s president. In 2003, Bollinger made news when as president of the University of Michigan he was the named defendant in two affirmative-action cases. In Gratz v. Bollinger, the justices by 6 to 3 struck down the university’s policy used for undergraduate admissions, which blatantly sorted students by race and applied different academic standards to achieve desired racial admission outcomes. But in the case of Grutter v. Bollinger, the court upheld by a 5–4 vote the law school’s preferences policy. The only difference between the two cases was that in the latter case the university was upfront about the preferences it was giving; in the former case it kept them hidden.

Justice Sandra Day O’Connor was the deciding vote in allowing racial preferences to continue, but she made it clear that their days should be numbered. She wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In Eric Holder’s world, that day will never come.

Some say Holder has already been presiding over the most race-absorbed Justice Department in history. Career civil-rights attorneys such as former Voting Rights section chief Christopher Coates have resigned in disgust, citing the administration’s repeated refusal to apply civil-rights laws evenhandedly. In his book Injustice, former Justice Department attorney J. Christian Adams has documented with eyewitness accounts that then-deputy assistant attorney general for civil rights Julie Fernandes told Justice lawyers that the new administration was only interested in “traditional civil rights work,” which to her meant “helping minorities.” As she put it before her appointment: “The law was written to protect black people.” More recently, the Holder administration’s affirmative-action guidelines for colleges and universities, issued in December, are clearly intended to increase the use of race-preferential admissions policies. Could it be that Holder has not yet begun to fight?

If so, it makes the need for the Supreme Court to make the correct constitutional call in Fisher all the more imperative. In places where the use of racial preferences has largely ended because of state law, such as California, universities have thrived and have been able to recruit diverse student bodies. But in places where preferences remain the order of the day, there is real harm done. As Roger Clegg, president and general counsel for the Center for Equal Opportunity noted on National Review Online, “The casualties of these discriminatory policies are not only the white and Asian students who are discriminated against, but also the African American and Latino students who are supposedly their beneficiaries, because their academic careers and professional lives are damaged by the resulting academic mismatches.”

This conclusion is supported by an amicus brief filed in Fisher by three members of the United States Commission on Civil Rights — Gail Heriot, Peter Kirsanow, and Todd Gaziano — which cites mounting empirical evidence that racial preferences do considerably more harm than good.

“If this research is right,” they write, “we now have fewer minority science and engineering graduates,” “fewer minority college professors,” and “fewer minority lawyers” than we would have under race-neutral admissions policies.

How can it be that affirmative action reduces the number of minority professionals? The extensive research cited by Heriot, Kirsanow, and Gaziano shows that as a result of racial preferences, minority students are overwhelmingly at the bottom of the distribution of entering academic credentials at most selective schools. That’s what it means to get into a school on a preference. One’s entering credentials will be below those of the typical student.

These studies show that going to a school that one got into by the skin of one’s teeth is not a good idea. Academic credentials matter, not just in the absolute sense, but also in a comparative sense. Students who attend a school where their entering credentials are similar to the rest of the students are more likely to follow through with an ambition to major in science or engineering, more likely to decide to become a college professor, and more likely to finish law school and pass the bar.

Put differently, if you have two identical students and one goes to Penn State and gets A’s and the other goes to Princeton and gets C’s, the Penn State student is likely to be more successful regardless of his race. And he is likely to be a lot happier.

Indeed, polls show most Americans are rightly uncomfortable with racial preferences. But affirmative action — the kindler, gentler term — has been around so long now that many have forgotten the origins of that peculiar institution. Some don’t realize that the 1964 Civil Rights Act that is cited as the authority for mandating preferential treatment for racial minorities actually forbids all racial discrimination. It all happened before many Americans were even born.

Blame the courts for the perversion of the well-intentioned Civil Rights Act. In employment law, the Supreme Court started out sounding the right note with regard to so-called “reverse discrimination.” It ruled in McDonald v. Santa Fe Trail Transportation Co. (1976) that Title VII means just what it says and applies to whites as well as African Americans. But to its everlasting discredit, the Supreme Court endorsed preferential treatment for minorities in United Steelworkers v. Weber (1979). In spite of overwhelming evidence to the contrary, Justice Brennan, writing for the majority, managed to hold that Congress would have wanted to permit Kaiser Aluminum and its union to establish quotas for black candidates for highly sought-after training programs. Justice William Rehnquist dissented, refuting the majority’s reading of the statute with clear evidence from the legislative history and repeatedly comparing the majority’s opinion to George Orwell’s novel 1984.

Meanwhile, colleges and universities, partly motivated by ideology and partly by concern over the violent race upheavals of the late 1960s, were engaging in similar race-preferential policies. In Regents of the University of California v. Bakke (1978) and in Grutter, the Supreme Court reluctantly acquiesced in those policies as well.

Shortly before the passage of the landmark Civil Rights Act of 1964, Urban League executive director Whitney Young called for “a decade of discrimination in favor of Negro youth.” Congress clearly and unequivocally rejected that advice, opting instead for a complete ban on race discrimination in employment and at colleges, universities, and other institutions that accept federal funds. Nevertheless, Young got his way — and more. And more. Before the ink was dry on Title VII of the 1964 Act, the Equal Employment Opportunity Commission was making plans to pressure employers to hire more African-American employees. Within just a few years, colleges and universities were violating Title VI’s prohibition on race discrimination by substantially lowering their academic standards for African-American applicants. Young’s decade of discrimination in favor of African Americans had begun. That “decade” has now stretched into its sixth decade.

Here’s hoping that later this year the Supreme Court repairs its previous mistakes and, following Justice Sandra Day O’Connor’s advice, draws the curtain shut on racial preferences, even if it is a little earlier than her own timetable — which has 16 more years to run.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.