From – cfif.org – By Ben Boychuk
Next week, the U.S. Supreme Court is scheduled to hear oral arguments in Fisher v. University of Texas, which once again puts race-conscious college admissions to the constitutional test. With the rationale for racial discrimination dwindling — and understand, discrimination is precisely what the University of Texas has been engaging in — the arguments for its preservation have only intensified.
And some of the loudest proponents may be found within the very agencies charged with ensuring that official discrimination is a thing of the past.
This will be the High Court’s second go-round with Fisher. In 2008, Abigail Fisher, a white high school senior at the time, alleged she was denied admission to UT-Austin on account of her race, in violation of her 14th Amendment rights. Two lower courts sided with the university. In 2012, the Supreme Court ruled 7-1 that a Fifth U.S. Circuit Court panel had been too deferential in its evaluation of UT’s supposedly “holistic” admissions policy.
Justice Anthony Kennedy — who else? — wrote that “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
The standard of “strict scrutiny,” Kennedy continued, must not be “strict in theory, but fatal in fact.” At the same time, “[s]trict scrutiny must not be strict in theory but feeble in fact.” Got that?
Kennedy’s opinion rested on the Court’s frustrating 2003 decision in Grutter v. Bollinger, which held that a diverse student body brings educational benefits enough to amount to a compelling interest, but that such policies must be tailored narrowly so they do not “unduly harm members of any racial group.”
The standard is tough. So proponents of racial preferences are contorting themselves to make something resembling a constitutional case.
The U.S. Commission on Civil Rights on November 19 issued a statement urging the Court to uphold UT’s admissions policy. The Commission “believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body.”
How so? Because UT’s policy “affects only a very small portion of the school’s admissions determinations” and “includes race among a long list of factors.”
But as Richard Sander and Stuart Taylor, Jr., pointed out in the lead up to the Court’s first decision inFisher, the “Personal Achievement Index” the university used in its admissions classifies being born black or Hispanic as an “achievement.” Being born Asian or white was, “well, just being born.”
Sander and Taylor argued in their 2012 book, Mismatch, that race-based admissions have baleful effects on minority students who are admitted to more prestigious schools than they otherwise would be based solely on their grades and test scores. Sander and Taylor show that many of these students fall behind and often drop out as a result.
Yet the Civil Rights Commission dismisses the “mismatch” argument. “A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience,” the Commission’s statement concludes. “It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear.”
For the diversity crowd, it’s all a matter of time. Justice Sandra Day O’Connor saved racial preferences from extinction with her contorted opinion in Grutter. The University of Michigan Law School had a compelling interest in in promoting diversity, she maintained, because it helps foster a learning environment that is “livelier, more spirited, and simply more enlightening and interesting” when the students come from “the greatest possible variety of backgrounds.”
O’Connor also wrote, “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Justice Clarence Thomas in his dissent concurred — sort of. Race-guided preferences are “illegal now,” he wrote, so it was a sure bet they would be illegal in 25 years.
Thomas’s position isn’t shared by the higher education establishment, or the Obama administration. The United Negro College Fund in its amicus brief in Fisher II contends that perhaps someday, race-conscious admission policies will no longer be necessary, but “because of the effects of centuries of slavery, segregation, discrimination and unequal opportunity based on race, that day is not today.”
Or tomorrow. Or likely ever. A quarter century might as well be a millennia. Because to hear the complaints of protestors who have disrupted and paralyzed college and university campuses from California to Connecticut and just about everywhere in between, institutional racism is a chronic condition and the injustices of the past are more pressing than ever before.
Whatever the high-minded, ostensibly social science-based reasons that the University of Texas and its allies may offer for their discriminatory policies in reams of legal briefs, the truth is the institutions have a great deal riding on a favorable outcome from the High Court.
American colleges and universities have erected a vast and expensive edifice of catering to the endless and ever-changing demands of diversity. City Journal’s Heather Mac Donald has chronicled the hundreds of millions of dollars that public and private colleges expend annually on multicultural follies. Harvard, for example, spends more than $50 million a year on faculty diversity training — which students there recently complained wasn’t nearly enough. The University of California, San Diego (my alma mater) spends nearly $1 million a year funding a vice chancellor’s office for “equity, diversity and inclusion.” And on and on.
Twenty years ago, Claremont McKenna College sociologist Frederick Lynch coined the term “the diversity machine” to describe the billion-dollar industry of consultants, human resource professionals, gurus, compliance officers, statisticians and lawyers that has the vast majority of U.S. businesses in its thrall.
The diversity machine is alive and well not only in the universities, but also at the highest levels of the federal government. The U.S. Constitution was supposed to guarantee fairness and equality under the law, not establish an elaborate scheme of ethnic and racial preferences under the guise of “diversity.” Would it be too much to ask for the Supreme Court to reaffirm that basic truth?