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Saturday Q&A: Sizing up the Supreme Court's affirmative action case

| Friday, Feb. 19, 2016, 8:57 p.m.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, a Virginia think tank devoted to issues of race and ethnicity. Clegg, who will appear at a Pittsburgh Federalist Society luncheon on Feb. 26, spoke to the Trib regarding the U.S. Supreme Court's highly anticipated ruling on a significant affirmative action case, Fisher v. the University of Texas. The court's decision will determine whether colleges and universities can continue engaging in race-conscious admissions, and if so, under what circumstances.

Q: Fisher v. the University of Texas is widely considered to be a landmark challenge to the constitutionality of affirmative action. What prompted your organization to become involved in the case?

A: The CEO's basic approach is to believe very strongly in the original American motto of “E Pluribus Unum,” that we are all Americans and that it's a bad idea to have policies that divide us according to skin color or what country our ancestors came from. Therefore, we oppose racial discrimination of all kinds — whether it's the old-fashioned politically incorrect kind or the politically correct kind you see these days. Because of these principles, we think that no student should be given a preference or discriminated against on the basis of his or her skin color or what country his or her ancestors came from. So the brief that we helped write and joined in the Fisher case urges the Supreme Court to make it illegal for schools to engage in that kind of discrimination.

The principle that we are fighting for is the same principle that was being fought for by the civil rights movement — judge people by the content of their character and not the color of their skin. I think we're all better off if that's the approach that schools take as America becomes increasingly a multiethnic and multiracial society. It's increasingly untenable to have a legal system that sorts people according to race and ethnicity. … (D)eciding whether you are going to give a preference to people or discriminate against them based on what box they check was never a good policy and it's a completely indefensible idea in 2016.

Q: The court is supposed to rule on the case by the end of the term. Are you optimistic the justices will strike down the university's affirmative action policy?

A: I think the University of Texas will lose. It's hard to predict how broad an opinion the court will write. I hope it will write a quite broad opinion and put an end to these policies altogether. But it's also possible that it could write a more limited option that says the University of Texas admission policies are illegal but leaves the door open to other schools perhaps being able to try to justify their policies. But my prediction is that after the court's decision, it's going to be much more difficult for schools to justify this kind of discrimination.

Q: Do you think Justice (Antonin) Scalia's untimely death will affect the case?

A: It does not change my belief that the University of Texas will lose, though it might change the margin of victory (in justice votes). Of course, Justice Scalia's loss also means not only the loss of a vote but also the loss of an eloquent and persuasive critic of racial preferences.

Eric Heyl is a Tribune-Review columnist. Reach him at 412-320-7857 or eheyl@tribweb.com.

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