Fisher and Deference to Universities

June, 2013

Washington -- The U.S. Supreme Court's decision in Fisher was predictable (7-1) because the court is not about to weaken its strict scrutiny standard in matters of race. Giving universities deference does not mean they are on a such a long leash that they can avoid strict scrutiny.

I would be more sympathetic to the Ginsburg dissent if universities had a better record to justify deference toward them in matters of race. My research, and that of many others, suggests that in the past three decades, colleges and universities generally have moved away from giving financial aid to needy minorities in favor of recruiting middle and upper income students who would be going to college anyway. Higher education institutions have saddled the low income of all races and ethnicities with often unmanageable debt while using merit aid to recruit the better off and to make sure they have enough smiling faces of minorities for the campus brochures.

Because low income students are disproportionately black and Hispanic, these groups have actually taken the brunt of the blow. If universities were more sincere about helping these groups, they would be doing something about the student debt crisis and not undermining the Pell grant program. How many colleges that sponsored the New York Times ad supporting racial preferences are simultaneously undermining Pell?

I hope when strict scrutiny is applied to the remanded Fisher case, and to other future cases, that the lower courts will look not only at classroom make-up but also at dropout rates and especially debt burdens in order to determine how much deference universities should be given when it comes to race.

Reading the public opinion polls that show wide margins of blacks, Hispanics, and whites all disapprove of racial preferences at universities, I'm inclined to think that today's concept of social justice and opportunity has more to do with college affordability than with race-based admissions.