Will the Supreme Court Finally Get It Right on Affirmative Action? Will it finally respect the Constitution – and eliminate policies that hurt the very people they’re supposed to help? by Bruce Thornton
https://www.frontpagemag.com/will-the-supreme-court-finally-get-it-right-on-affirmative-action/
Hard on its landmark victories for judicial and Constitutional integrity last term, the Supreme Court will hear oral arguments this month on two cases challenging admissions policies at Harvard and the University of North Carolina. If decided rightly, both cases should lead to the banning of unconstitutional, discriminatory racial preferences in university admissions.
After years of previous cases in which the Supreme Court tried various work-arounds to avoid stopping discrimination, maybe this year the Justices will get it right.
From its beginning in the 1978 decision Regents of the University of California vs. Bakke, the jurisprudence of subsequent cases have, as Justice Clarence Thomas’ dissent in the 2003 Grutter vs. Bollinger case put it, “refus[ed] to define rigorously the broad state interest” served by “diversity,” and thus demonstrate specifically the “educational benefits that flow from student body diversity,” as Justice Anthony Kennedy in Fisher v. University of Texas (2016) vaguely defined that “compelling state interest” allegedly justifying discrimination on the basis of race.
As we’ve seen for 44 years, this vacuum created by the lack of clarity about what “diversity” is exactly, and how it specifically enhances educational outcomes, has been filled by illiberal ideology and factional politics that serves partisan purposes rather than educational ones. The “diversity,” then, that courts, businesses, educational institutions, and government trade in is so broad and simplistic that it guarantees the concept will be used to pick political and racial winners and losers.
Let’s start with the idea of “diversity” that supposedly justifies violating the Civil Rights Act and the 14th Amendment. Actual diversity is light-years more complex than the old “scientific” racist categories of “black,” “white,” “Asian,” and later “Hispanic,” based on skin color, hair texture, or other superficial characteristics. Relying on these physical criteria ignores the real diversity that appears at the level of ethnicity: socio-economic class, language, dialects, customs, mores, folkways, regional differences, faith, and political preferences. Indeed, so bizarre has this crude “diversity” become that a poor white kid from a region historically impoverished who supposedly enjoys “white privilege” doesn’t add as much “diversity” to the student body as an affluent black student does.
Race-based preferences, then, ignore all those more interesting and meaningful markers of diverse identities––except the last one, politics. Particularly in education, “protected” categories like “race” and “gender” take precedence, and traffic in a “diversity” that camouflages a rigid intellectual and ideological orthodoxy. We used to called it “multiculturalism,” but now it sports the Orwellian moniker “woke.” The grand narrative of the “woke” is the melodrama of permanent white racial oppression of selected victims “of color.” “Diversity” now has been joined to “equity” and “inclusion” in order to define an ideology that is homogeneous, unequal, and excluding––the opposite of real diversity.
This brings us to the so-called “benefits” racial set-asides are supposed to provide students. In fact, the consequences of this illiberal ideology are not beneficial but tyrannical: free speech and dissent are “cancelled” by anti-discrimination law that privileges subjective, even arbitrary terms like “hostile” and “intimidating,” which end up meaning whatever the “protected” victims think they do. Similarly, Constitutional protections for those accused of sexual misbehavior or “hate” crimes are ignored by campus tribunals that “cancel” the violators of group-think orthodoxy.
Then there are the poorly substantiated claims that “diversity” improves inter-ethnic relations and understanding. In fact, the empirical evidence that does exist shows that increasing a politicized “diversity” in universities has been more likely to exacerbate racial divisions. Courses, programs, fraternities, sororities, dorms, scholarships, grants, graduation ceremonies, social space, and campus facilities are segregated, and balkanize students into ethnic silos. How does this de jure “Jim Crow 2.0” segregation provide “benefits” to students of any ethnicity?
And don’t forget the damage done to the very students affirmative action is supposed to help. Most grievous is competitive, top-ranked schools lowering their standards to admit students “of color” just so they can juice their “diversity” stats, a sine qua non for the academic administrator on the make. As a consequence, this “mismatching” of students who could flourish in a second- or third- tier schools places them in more competitive top-tier ones, where they struggle and become discouraged. If they do graduate, they often leave with dubious majors in various politicized “studies” programs, majors which have little value in the job market. No wonder drop-out rates and time-to-graduation numbers for black and Latino students are dismal.
The result, as Richard H. Sander and Stuart Taylor Jr. in their 2012 book Mismatch document, “is much greater rates of dropping out, earning poor grades, or finding refuge in easy majors like ethnic studies that have very few prospects for employment. They also have a harder time passing licensing tests such as the bar exam, and earn fewer degrees in science and engineering than whites and Asians.”
Meanwhile, lower admission requirements continues the general degradation of higher education curricula and grading standards by watered down foundational skills and fundamental knowledge, while increasing endemic politicization by “woke” propaganda like Critical Race Theory; tendentious anti-Western melodramas; and illiberal identity politics. It’s hard to see the “benefits” or improved “educational outcomes” for all students in this drastic corruption of the university’s traditional mission.
The height of racial preferences’ incoherence and injustice, though, is the harm done ethnic Asian students, the plaintiffs in the two cases currently before the court. Their exposure of admissions criteria that claim to treat race as merely one of many factors in deciding who gets in, has shown that in fact it is the determining factor, a practice which the Supreme Court already has ruled is illegal. As Jason L. Riley writes in the Wall Street Journal,
It’s long been clear that elite universities are abusing their discretion and violating those parameters. In a brief for the plaintiffs, Duke economics professor Peter Arcidiacono demonstrates that an applicant to Harvard with typical credentials has a 25% chance of admission if he’s Asian. But if you leave the credentials the same and change his race to black, the chance of admission climbs to 95%. For out-of-state applicants to UNC, the racial disparity in the chances of admission is even starker. Obviously, these schools are using race as the decisive factor.
Just how does blatantly discriminating against one ethnicity––one “of color” that historically was explicitly banned from the country by laws like the 1924 “national quotas” immigration restrictions, and the 1882 Chinese Exclusion Act––to benefit another, improve “educational outcomes”? Is it not rather a repudiation of the idea of equal justice, and evaluation of individuals on the basis of merit, when political favoritism ends up determining outcomes?
Finally, how is it beneficial to all students to rob them of the most important boon of a liberal education: how to think critically and “to know the best that has been known and thought in the world, irrespectively of practice, politics, and everything of the kind; and to value knowledge and thought as they approach this best, without the intrusion of any other consideration whatsoever,” as Matthew Arnold put it, and “through this knowledge, turning a stream of fresh and free thought upon our stock notions and habits, which we now follow staunchly but mechanically.” In other words, cultivating the diversity of free minds and ideas, the only diversity that a university should cultivate.
Finally, the dominance of an illiberal, antihumanist “stock notions and habits” of “woke” ideology “that today is followed staunchly but mechanically,” reflects the decay of liberal education and its remit to train individuals for ordered liberty and civic virtue. And one abettor of this failure has been racist, politicized, and illiberal affirmative action policies. It is long past time to respect the law and the Constitution, and to eliminate policies that are blatantly discriminatory and hurt the very people they’re supposed to help.
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