The Volokh Conspiracy

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A Dubious Expediency

How Race Preferences Damage Higher Education


If you haven't checked it out already, please take a look at A Dubious Expediency: How Race Preferences Damage Higher Education (edited by Maimon Schwarzschild and yours truly).

The theme is just what the title suggests—that admissions policies that give preferential treatment to under-represented minorities have not been good for colleges and universities (or indeed for anyone, very much including the policies' intended beneficiaries). The book contains eight fact-filled essays. Among the authors are John Ellis, Lance Izumi & Rowena Itchon, Peter Kirsanow, Heather Mac Donald, Maimon Schwarzschild, and Peter Wood. I have two essays in it. One is mine alone. The other was co-authored by Carissa Mulder.

The title comes from one of my favorite left-of-center jurists—Stanley Mosk. He wrote the majority opinion in the California Supreme Court's decision in Bakke v. Regents of the University of California (1976), which (unlike the U.S. Supreme Court's fractured 1978 decision in the same case) was unequivocal in holding race-preferential admissions to be a violation of the law. As Mosk put it in 1976, "To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

Mosk's credentials as a liberal and a civil libertarian were impeccable. He'd been an effective advocate for civil rights long before it became fashionable and stuck his neck out for them several times. Yet beginning with the Bakke case, he lost favor with the Left. It's funny how that works.

With the Supreme Court's decision to review Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199) and Students for Fair Admissions v. University of North Carolina (No. 21-707), the book is getting some additional attention.

Amicus briefs in those cases in support of the petitioner (or in support of neither party) are due in early May. If you are so inclined, there is still plenty of time to write one. And A Dubious Expediency will give you food for thought if you're not yet sure exactly what you'd like to cover.  Don't be shy.  What the country needs now is more lawyers with at least half the civil courage that Stanley Mosk had.