Two years ago, in his annual State of the Union address, President Obama publicly upbraided the Supreme Court, six of whose members were seated immediately before him in their robes, alongside chiefs of the military.
The President delivered this unprecedented public rebuke because a week earlier the Court had upheld the legality of the corporate and union financing of political advertising, something not to his advantage, and hence not to his liking. He declared:
‘With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.’
From their expressions and body language, the six justices were not too pleased by receiving that pubic reprimand from the President who may yet in turn rue having delivered it. For yesterday (February 21), the Court announced that later this year it will hear a case with potential to inflict on the President serious political damage in the immediate run-up to the November elections.
The case that the Court has decided to hear is that between Abigail Fisher and the University of Texas. The plaintiff is a young white woman who, in 2008, unsuccessfully applied to the University of Texas at Austin. She claims that her application was unlawfully turned down on account of race and in contravention of her Fourteenth Amendment constitutional right to equal protection under the law. Her grounds for making this claim are that the University admitted in preference to her several academically less well qualified minority applicants without any good cause.
Hearing this case will give the Supreme Court opportunity to reverse several previous Court rulings that have, for the last several decades, enabled American universities to discriminate in favor of minority applicants by claiming they were doing so to increase their student diversity.
The first Court ruling that allowed universities to practice racial discrimination lawfully was that delivered in 1978 in the case of Bakke vs. the Regents of the University of California. The plaintiff here was a white man who twice had unsuccessfully applied to the medical school of the University of California at Davis.
Eventually he convinced the Court that he had been victim of unlawful discrimination on account of his color, since the medical school had routinely been according priority to academically less well qualified minority applicants through setting aside for them an annual quota of 16 out of a total 100 of its annual places. The Court ordered the school to admit the plaintiff who duly graduated from it.
At the same time, the Court declined to rule unlawful all consideration by universities of the race of applicants in their admissions policies. The Court ruled that consideration of race lawful provided it was but one of several factors taken into account in addition to applicants’ test scores.
In arriving at this ruling, the vote of presiding Justice Lewis Powell was to prove decisive. He was also unique among all nine judges to hear the case in simultaneously finding in favour both of the plaintiff and of the legality of the use by universities in considering the race of applicants when deciding admissions. He opined that consideration of it was lawful, provided there was no other way for universities to achieve student diversity, something whose alleged educational benefits he took on trust from the academics testifying in support of the University of California.
The other four justices who found in favour of the lawfulness of race-conscious university admissions policies were seemingly not concerned at all about the alleged educational benefits of the diversity in which their use resulted. They favored these policies for other, more traditional reasons such as their being supposed liable to boost the number of minority doctors and lawyers, to improve the career prospects of minorities more generally, and thereby to help compensate minorities for the legacy of past injustice inflicted upon their forebears.
The notion that student diversity was so compelling a state interest as its pursuit might warrant universities in employing otherwise unlawful race-conscious admissions policies was no more than a mere opinion of Justice Powell’s. However, it gave universities enough apparent license to continue with these policies, after they replaced the more mechanical ones like quotas, which had been deemed unlawful, by more subtle, opaque ones in which the race of applicants was one of several factors of which universities took account in deciding whom to admit. Universities also adjusted their supporting rhetoric for these race-conscious admissions policies. Now they only dwelt on the alleged educational benefits of the diversity that their use conferred on students exposed to it.
However compelling might the interest be of any state in having its universities achieve such diversity, and however necessary it might for them to have resort to race-conscious admissions to achieve such diversity, employment of such policies still had the effect of causing universities to reject white applicants in favour of academically less well qualified minority applicants.
For all the paeans sung to diversity during Bakke, recourse to consideration of the race of applicants in pursuit of it still left many of the unsuccessful white applicants feeling victims of unfair and unlawful discrimination on account of their color. That led over the ensuing decades to a steady stream of legal cases in which the lawfulness was contested of the basis on which their university applications had been rejected.
Many of these challenges proved successful, at least partially. One that did was that launched against the School of Law of the University of Texas in 1992 by Cheryl Hopwood together with several other unsuccessful white applicants. None succeeded in proving that they had been denied entry on account of their race. However, the plaintiffs did succeed in 1996 in extracting from the Fifth Circuit Court of Appeal, and reiterated by it in 2001, admission that the pursuit by universities of student diversity was not a lawful basis on which any might decide between applicants.
As a result, the University of Texas revised its admissions policy. It replaced its former overtly race-conscious admissions with the prima facie race-neutral policy of automatically accepting the top ten per cent of graduates from each high school who applied.
Ostensibly race-neutral, this policy was deliberately designed to accord disproportionate favor to minorities without any direct reference to their race. Later it was augmented by addition of a supplementary race-conscious admissions process for deciding between applicants who fell below the automatic top ten per cent band. It was the University’s use of this additional race-conscious admissions procedure which Abigail Fisher claims led to her unlawful rejection. She claims its use was unlawful because the extra diversity that it brought was surplus to the critical mass threshold which was all the Court had ever said could sanction consideration of race.
The University of Texas added this extra race-conscious tier to its admissions procedures after the outcome of Grutter vs. Bollinger in 2003. The plaintiff here was a former graduate of the University of Michigan who had, in 1996, unsuccessfully applied to its law school. She brought the case after she accidentally discovered that the law school had admitted several minority applicants with much lower undergraduate grade-point averages and LSAT scores than hers. The named respondent representing the University was Lee Bollinger, dean of its law school and later, as now, University President.
The Supreme Court eventually upheld the University’s race-conscious admissions policies by appealing to the same alleged educational benefits of exposure to campus diversity, as Justice Powell first suggested could make their use lawful, back in 1978.
The University of Michigan was not for long able to trumpet the lawfulness of its admissions policies. In 2006, their lawfulness was once again called into question by the results of a state-wide referendum in which the majority voted for the discontinuance of race-based admissions in all the state’s public colleges and government contracting. That referendum was subsequently struck down in the courts in 2010, after it was claimed to be in contravention of the 14th Amendment rights of Michigan’s African-American minority who largely favours these policies, but, being a minority, could not be expected to overturn such a referendum through the political process. That judgement is now in turn under appeal and due for consideration by the Sixth Circuit Court of Appeals next month.
Being the consummate politician that he is, President Obama to date has managed to avoid giving such a widely unpopular policy as race-conscious university admissions too explicit an endorsement. He has, however, sufficiently clearly telegraphed his support of them as to let their supporters know that he stands with them on the issue.
In the same 2010 State of the Union address as that in which he upbraided the Supreme Court, he also said, using words that could have come straight out of George Orwell’s novel 1984 in terms of their perverted logic and wilful distortion of the truth (and in which he also misattributed to the Constitution a notion only found in the Declaration of Independence):
‘America’s greatest source of strength has always been our ideals… We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we’re all created equal; that no matter who you are or what you look like … you should be treated no different than anyone else.’
Fat chance, so long as diversity remains something celebrated like that.
Much more importantly, as recently as last December, the Departments of Education and Justice issued universities new ‘Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education’. This document uncritically repeats all the claims made about the alleged educational benefits of diversity that were made in the Grutter case and still earlier in the Bakke case.
To advance them as uncritically as these two government departments did in that document was intellectually dishonest in the extreme. It was dishonest, because, both at the time of Grutter and since, profound doubt has been cast on them by empirical evidence. Such evidence has documented the malign educational effects of artificially engineered campus diversity policies. Among the critics of race-conscious university admissions policies, the work of Professors Peter Wood, Richard Sander and Martin Lipsett looms large and should be consulted.
Essentially, their claim is that artificially-engineered diversity results in the systematic admission of minority applicants to universities at which they are out of their academic depth, and at which in consequence they tend to do badly and overall much worse than they would have had they attended institutions to which they would have gained admittance purely on academic merit. Meanwhile, all students are aware that engineering has gone into the creation of their campus diversity, and so tend to view those of different ethnicity to themselves with suspicion and sometimes hostility.
Nor do race conscious admissions policies seem needed for universities to achieve critical-mass student diversity. The diversity at California’s state universities did not appreciably suffer after the 1996 state referendum that obliged its universities to discontinue their use. The years following their discontinuance also saw a 350 per cent increase in the number of African-American teenagers in the state sign up for calculus in preparation for university. Having now to get in only on academic merit made them try harder and raise their academic game to the appropriate level. This is hardly a bad thing. In any case, California, like so much elsewhere in America today, is now so demographically diverse that the abandonment by its universities of race-conscious university admissions is liable to have increased their overall diversity, rather than diminish it.
These embarrassing truths about the limitations and superfluity of race-conscious university admissions policies are now about to resurface with hearing by the Supreme Court of Fisher. They will expose the mendacity at worst, or supreme naivety at best, of the Departments of Education and of Justice under the administration of President Obama.
It is to be hoped that the Supreme Court now puts an end in America to all its educationally counterproductive and divisive race-conscious university admissions, the mother of all diversity issues. Should it do so, then, with all due respect to the President, one can only say that both he and they had it coming to them.