For Release: September 15, 2015
Contact: Judy Kent at (703) 759-7476 or [email protected]
Affirmative Action Returns to the U.S. Supreme Court
Black Conservatives Join Supreme Court Legal Brief Demanding End to Race-Based University Admissions
Schools Accused of Trampling Constitution for Politically-Correct Diversity Goals
U.S. Supreme Court to Hear Same Racial Preferences Case Twice in Almost Two Years
Washington, D.C. - Project 21, a leader in the promotion of black conservative public policy opinion and activism, has joined a new legal brief to the U.S. Supreme Court opposing racial preferences in school admissions.
Project 21 joined an amicus curiae ("friend of the court") legal brief written by the Pacific Legal Foundation and also joined by the Center for Equal Opportunity, American Civil Rights Institute and National Association of Scholars in the case of Abigail Noel Fisher v. University of Texas at Austin, et al.
This is the second time the Fisher case will come before the U.S. Supreme Court. In the case, Abigail Fisher, who is white, claimed that race preferences prevented her acceptance at the University of Texas at Austin in favor of a lesser-qualified minority applicant.
In 2013 the Court ruled 7-1 that race-conscious admissions policies must be narrowly tailored in order to be constitutional, and sent the case back to the federal 5th Circuit Court of Appeals to be reheard. The Supreme Court justices told the 5th Circuit to retry the case under standards of "strict scrutiny." The lower court sided with the University of Texas at Austin again. In July 2015, the U.S. Supreme Court accepted the case for a rehearing to determine if the 5th Circuit properly followed the Supreme Court's instructions.
A date for oral arguments at the Supreme Court has not been announced. A decision is expected by June 2016.
"The Supreme Court's earlier rulings make it clear that quotas and other kinds of broad-based racial preferences are impermissible," said Project 21 Co-Chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and was a leadership staff member for the U.S. House of Representatives. "One would think that, in 2015, no school would think it necessary to rely on a racial test to balance out its student body. In this case alone, however, the Court has given every opportunity for the lower court and the University of Texas itself to reassess its race-based admissions policy. Yet it appears only direct intervention by the Court will now be sufficient. The days for race-based social engineering are numbered."
Project 21's Cooper is a University of Texas at Austin graduate.
Fisher and her supporters, including Project 21, asked the Court to determine if the lower court followed the orders of the justices to thoroughly and thoughtfully re-examine if the University of Texas at Austin's race-conscious admissions policy is narrowly tailored and consistent with the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
When the U.S. Supreme Court ruled in 2003 that race preferences for the sake of campus diversity were permissible, the University of Texas at Austin immediately instituted the race-conscious admissions policy challenged in the Fisher case. It was instituted despite other schools' use of additional considerations to achieve their own diversity goals, factoring in things such as parental income, parental educational histories, general family history and even a Texas policy that guaranteed state-run university enrollment for students in the top percentages of their high school graduating classes. The Project 21-signed brief notes:
There is no evidence that the University considered many of these race-neutral options, nor has it documented why these options would fail to produce a critical mass of underrepresented students and the educational benefits a diverse student body provides.
The brief also argues that "the University has failed to prove that its race-conscious program is narrowly tailored" to benefit alleged diversity goals because the assertion is not proven, the university has not seemed to weigh the costs and benefits of a race-conscious admissions policy nor has it proved it pursued all available alternatives to a race-conscious policy.
Furthermore, the brief explained this problem is not limited to the University of Texas at Austin:
There is no evidence that universities have weighed the undeniable costs of racial preferences against the benefits that purportedly result from classifying individuals on the basis of race. And there is no evidence that universities have given serious thought to whether these benefits can be achieved through race-neutral means. This demonstrates that universities nationwide continue to flout the Court's limits on the use of race in admissions decisions.
Because the situation is not unique, Project 21 and the other organizations on the PLF-written brief noted the Court must definitively address the issue of the constitutionality of race-conscious admissions policies:
This Court's most recent decision in Fisher - emphasizing the need to exhaust race-neutral measures before turning to race-based classifications - has not changed the behavior at our nation's public universities...
[P]ublic institutions are not considering the costs attendant to racial preferences, and whether those costs outweigh the purported benefits.
"Over a century ago, Justice John Marshall Harlan said 'Our Constitution is colorblind and neither knows nor tolerates classes among citizens.' The justices who underwhelmed almost everyone by sending the Fisher case back to the 5th Circuit in 2013 now have another chance to reaffirm Constitutional principle," said Project 21's Joe R. Hicks, the former executive director of the Southern Christian Leadership Conference's Greater Los Angeles chapter. "Justice Clarence Thomas got it right on Fisher when he wrote 'I would... hold that a state's use of race in higher education admissions is categorically prohibited by the Equal Protection Clause.' And, as my friend Richard Sander -- a UCLA law professor and expert on social and economic equality -- has patiently explained, race preferences hurt the supposed beneficiaries. These students, he wrote in The Atlantic, 'fall behind from the start and become increasingly lost as the professor and her classmates race ahead... the experience may well induce panic and self-doubt, making learning even harder.'"
The brief additionally cites "academic mismatch" as a perilous by-product of poorly-crafted race-conscious admissions policies, noting that "racial preferences... cause acute harm to those who receive them." By placing minority students in schools above their academic aptitude so that the institution can achieve its diversity goals, the brief noted "[t]he result is a significant gap in academic credentials between minority and nonminority students at all levels." This may lead to changed majors, dashed hopes and - worst of all - disparate dropout rates among minority students.
Project 21's Hicks added: "The broader debate surrounding 'affirmative action' has changed since the Court last ruled on this case. This time, they are thankfully afforded a second chance to end the divisive practice of race preferences."
In sum, the Project 21-signed brief points out to the justices that:
When an educational institution discriminates on the basis of race, narrow tailoring requires that it prove independently how racial preferences are the least harmful means to secure the educational benefits of diversity... The Court can ensure that students are treated equally under the law by holding that the University's decision fails to satisfy the narrow tailoring requirements of the Equal Protection Clause.
Additional information about this case and the amicus brief just filed can be found in a blog post by the author of the brief, attorney Joshua Thompson, here on the Pacific Legal Foundation website.
Project 21 members have been interviewed or cited by the media on current events and politics in tens of thousands of instances since its founding in 1992. Most recently, this has included Fox News Channel programs such as "Special Report with Bret Baier," the "O'Reilly Factor," "Fox and Friends" and "The Kelly File" as well as CNN's "The Situation Room," HLN's "Dr. Drew," Blaze TV, America One News Network, TVOne, RT and Newsmax TV. On radio and in print, Project 21 members have appeared on or been cited by the Salem Radio Network, Sean Hannity, Jim Bohannon, Bill Martinez, Radio America, American Urban Radio Network, Bill Cunningham, Roger Hedgecock, Mike Siegal, Dana Loesch, Thom Hartmann, the Progressive Radio Network, EurWeb, Orlando Sentinel, St. Louis Post-Dispatch, SiriusXM satellite radio and 50,000-watt talk radio stations that include WGN-Chicago, WBZ-Boston, WJR-Detroit, KDKA-Pittsburgh and WLW-Cincinnati.
Project 21 has participated in many cases before the U.S. Supreme Court regarding race preferences and voting rights and defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.
Members of the Project 21 black leadership network are available for media comment on this case as well as the overall issue of race preferences in what some call a "post-racial" contemporary America.
A leading voice of black conservatives for over two decades, Project 21 is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982.
Contributions to the National Center are tax-deductible and greatly appreciated.