March 27, 2019

PEW POLL FINDS AMERICANS OVERWHELMINGLY REJECT RACE AS A FACTOR IN COLLEGE ADMISSIONS: I should have written about this three weeks ago, but I got too busy. But here’s the bottom line: 73% of adults say that race should not be a factor in college admissions. On the other hand 19% say it should be a minor factor and 7% say it should be a major factor.

When you break it down by race, you get this: Whites: 78% not a factor, 18% minor factor, and 4% major factor; Blacks: 62% not a factor, 20% minor factor, and 18% major factor; Hispanics: 65% not a factor, 22% minor factor, 11% major factor; Asians: 59% not a factor, 27% minor factor, 14% major factor.

This is consistent with past history. As Paul Sniderman and Thomas Piazza wrote in 1993 in The Scar of Race, “[The affirmative action agenda] is politically controversial precisely because most Americans do not disagree about it.” When the poll question is halfway clear, the answers are pretty consistent.

Before Grutter v. Bollinger was decided in 2003, I wrote an article entitled Strict Scrutiny, Public Opinion, and Affirmative Act on Campus: Should the Courts Find a Narrowly Tailored Solution to a Compelling Need in a Policy Most Americans Oppose? First, it argued (uncontroversially, I think) that when the public favors discriminatory laws, the public’s view should carry no weight at all in a court’s analysis. As every law student knows, strict scrutiny holds that a racially discriminatory law or policy can only be justified by a compelling purpose, and the law or policy must be narrowly tailored to serve that purpose. But next, it argued, a court should not be able to find a compelling purpose if the public favors race neutrality instead. If the public finds the reason for discrimination, how can a court find it compelling?

Obviously, my argument failed to convince Justice O’Connor.

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