Opinion: Courts should end racial preference

June 25, 2013


— “In order to get beyond racism, we must first take account of race.”

— Justice Harry Blackmun, 1978

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

— Chief Justice John Roberts, 2007

Blackmun was concurring in the Bakke decision, which created the higher education “diversity” exception to the equal protection principle: Racial preferences in admissions to a public university do not violate the principle of equal protection of the law if they serve the supposedly compelling interest of achieving the educational benefits of a diverse student body.

Twenty-five years later, in a 2003 case upholding the constitutionality of racial preferences in admissions to a state law school, Justice Sandra Day O’Connor declared — citing no data or other reasons — that in 25 more years preferences would be unnecessary. What Blackmun did not anticipate, and O’Connor did not appreciate, is that the diversity rationale for racial preferences appeals to the diversity industry in academia precisely because it makes no reference to compensation for prior injustices. Therefore it does not aim to “get beyond” race.

Tinkering with diversity in a student body could, the court said in Bakke, be regarded as a First Amendment right — the exercise of academic freedom. So, the court’s acceptance of a “compelling” government interest in diversity, and of an educational institution’s entitlement to deference in defining diversity, was a license for universities to base actions on race forever.

Liberals abhor stereotyping but say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, benefiting campuses forever. Campus conservatives know how much liberal academics hunger for viewpoint diversity. 

As condign punishment for the wrong turn it took in Bakke, the court has been entangled for 35 years in a thicket of preferences that are not remedial and hence are not temporary. Preferences as recompense for past discrimination must eventually become implausible; the diversity rationale for preferences is immortal. And litigation about it will continue longer than forever.

On Monday,  the Supreme Court thrashed around in the thicket it has cultivated and fertilized for more than three decades. In a case coming from the University of Texas at Austin, it instructed a lower court to square this circle:

Because the 14th Amendment guarantees “equal protection of the laws,” universities wishing to ignore that guarantee in order to use racial classifications in admissions must be accorded “some” deference in their exercise of academic freedom. But the court thinks suspensions of constitutional guarantees are kind of important, so the court has decided to pretend that the guarantee is somehow not really being truncated. So an academic institution’s use of race must withstand “strict scrutiny,” meaning it must be narrowly tailored to achieve a compelling government interest.

What a tangled web the court weaves when first it practices to deceive itself about what it is doing to the equal protection guarantee. The 14th Amendment stops guaranteeing equal protection when the court defers to the “experience and expertise” of public universities in fine-tuning the racial and ethnic compositions of their student bodies in order to attain a “critical mass” of certain government-approved minorities.

In 2008, Abigail Fisher, who is white, was denied admission to the University of Texas under a baroque process the university has evolved in an attempt to make taking some account of race compatible with court’s rulings regarding racial preferences. These rulings have said, among much else, that race or ethnicity must not be the “defining feature” of a student’s application.

The Supreme Court said on Monday that the Fifth Circuit was too deferential to the university: The lower court did not properly apply strict scrutiny to judging whether the university’s use of race was sufficiently narrowly tailored. This clarified the fact that clarity is incompatible with the Supreme Court’s prior decisions carving out a higher education exemption from the Constitution’s marvelously clear guarantee of equal protection of the laws.

In an opinion concurring with the majority’s conclusion that strict scrutiny was required but not applied to Texas’ use of race, Justice Clarence Thomas says of “racial engineering”: There is no compelling governmental interest in whatever educational benefits supposedly flow from racial diversity that must be achieved by racial discrimination. Thomas should tell the chief justice that the way to stop discrimination on the basis of race is to stop pretending that strict scrutiny of such discrimination somehow makes it something other than what it is.

— George Will is a columnist for Washington Post Writers Group.


boiled 5 years ago

The Tea Party line is about to offer a whuppin' to Dems again next year too just like in 2010. The IRS can be thanked for that---and other Obama administration scandals.

People have just had it with this abomination of an administration.

weeslicket 5 years ago

ummm..... this opinion piece was about a supreme court decision.

weeslicket 5 years ago

scotus delivered a rather balanced verdict on this topic. i don't find it too surprising that institutions struggle with finding the right balance when considering race or ethnicity, since this has been a very difficult challenge for so long.

also, i always find it "peculiar" that people who look like mr. will so easily slide from race as a factor or consideration, to race as a preference, and finally to race as discrimination. it's as if the american meritocracy only has ayes for people who look like mr. will.

weeslicket 5 years ago

merit (e.g., grade point, assessment performance, academic accomplishments, class rank) is most definitely considered. merit is also considered in non-academic areas such as community service and extra-curricular activities. race and ethnicity are "a" factor of consideration, not "the" ultimate factor.

weeslicket 5 years ago

these questions don't make any sense. battle cry by some? whenwhat doesnot happen? platitude?

i don't understand what's bothering you. sorry.

chootspa 5 years ago

"Diversity of thought" is ALEC code-speak for hiring radical conservatives and climate-change deniers.

jhawkinsf 5 years ago

You've got to admit there is a certain element of truth in what fmrl said. Certain groups, as a whole, are seen as being conservative or liberal, Democrat or Republican. Certain regions of the country are seen that way. Certain communities. And there's a certain element of truth in those statements.

It's often mentioned in this very forum about the political leanings of Western Kansas. I could come to the opposite conclusion if I spoke of an inner city community that had large numbers of minorities. (Interestingly, your very name comes from the Yiddish, more often spelled chutzpah, but Jews are more often linked with liberal thought than conservative.) Of course, it's not always true, but it is more often than not. Given that, those ivory covered towers that are American universities are rightfully seen as bastions of liberalism. And as we've seen in many other areas, and there is not reason to believe otherwise here, people tends to hire like minded people. It's the very rationale for affirmative action programs.

chootspa 5 years ago

The "diversity of thought" notion is being brought up, not to eliminate academic groupthink, but to intentionally stack universities with conservatives by mandate.

Universities, by design, are going to hire professors with PhDs. As it turns out, that's a self-selective group with more liberal leanings. It's not because going to college makes you more liberal (studies show it doesn't) and it's not because grad schools are likely to admit liberals over conservatives (also studied and shown not to be the case). It turns out that being a professor is just a gig that appeals more to liberals. Conservatives are more likely to go work in the private sector. There's also little evidence that those conservatives who do enter academia are likely to face massive hardships or discrimination.

Mandating that colleges hire a quota of conservatives is just a stupid notion. Asking how someone votes isn't allowed in the interview process, and hiring someone for their specific disagreement to scientific consensus would be, for example, hiring flat earthers just to counter all that groupthink around the earth being round. Good idea? No. BTW, this year's flat earth is climate change.

The better practice is to encourage ethnic, religious, and gender diversity and hire people who are good at their jobs while keeping politics out of it as much as possible. There's still plenty of work to be done on that front. No need to throw political litmus tests into the mix. It's not a perfect system, but having a bunch of angry, white, conservative legislators without advanced degrees passing legislation written by corporate lobby groups is not the solution.

PS - my name comes from this:

And chutzpah is actually spelled like this: חֻצְפָּה

chootspa 5 years ago

Please point to someone less intelligent or less dedicated being admitted. That's often the accusation, but in most cases diversity policies only apply when all other factors are equal.

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