The problem with the educational benefits argument is that nobody really believes it.
In saying that the broad remedial justification is a nonstarter legally, I don’t want to leave the impression that it makes any sense logically, either.
That is, let’s suppose that you think, while the justifications for the use of racial preferences are not rock solid, there is at least something to them.
Does that mean that we should continue to use them?
To elaborate on just one point, because of its current salience: telling African-Americans, in particular, that less is expected of them and, indeed, then requiring less of them is a sure way to reinforce racial stereotypes and to encourage identity politics and the self-segregation of a group that the selection process has guaranteed will be mismatched and marginalized.
The unhappy consequences of this approach on a campus are, alas, all too visible.
The Center for Equal Opportunity, where I work, has actively opposed racial and ethnic preferences in university admissions since it began in the mid-1990s (I joined it in 1997), and I’ve worked against them even longer than that, during my time at the Justice Department in the Reagan and Bush 41 administrations.
The arguments have changed a little, but only a little.
There is no legal pedigree for setting such quotas, which sound like what Justice Lewis F. had in mind when he rejected such a rationale in Bakke in 1978 as “discrimination for its own sake” that is flatly forbidden by the Constitution.
Such an aim would manifestly require discrimination against not only Asian-Americans but against any other group that is “overrepresented” in higher education -- Jews and now also Asian-Americans, high school graduates, nonfelons, children, senior citizens and so forth.) Considering the Costs But let’s suppose that you are not completely persuaded.