Stuart Taylor and Richard Sander have filed a fascinating amicus brief in the Fisher case, hoping to bring some of the relevant social science research to the attention of the Court, and (they fervently hope)--to break through the closed-minded atmosphere through which most colleges consider "diversity" issues. Taylor's and Sander's arguments doubtless won't persuade racial preference ideologues Sonia Sotomayor and Ruth Bader Ginsburg, but their carefully reasoned brief provides grounds for Justice Kennedy or even Justice Breyer to join the Court's conservatives and scale back the virtually open-ended use of preferences that the Grutter decision established.
The duo's chief goal, however, is to alert the Court that "a growing volume of very careful research, some of it completely unrebutted by dissenting work, suggests that racial preferences in higher education often undermine minority achievement." This research matters, since it undermines the implicit assumptions behind both Bakke and Grutter--that however much racial preferences might harm the 14th amendment, they benefit those students admitted through preferences. If preferences turn out to have harmful or even ambiguous effects, Taylor and Sander argue, "then the fundamental legal premise for permitting this type of racial classification is gone."