Chris Eisgruber, the President of Princeton University, recently expressed concern that universities are perceived “right or wrongly, as blue dots” in a politically divided America and thus said that universities must be concerned with political diversity. Some other university leaders have also cautiously suggested that the academy may put out the welcome mat for the right. Nevertheless, there is reason for doubting that political diversity will be increased or discrimination against conservatives and libertarians ended in the elite university setting. The causes of political imbalance and of discrimination are entrenched and are unlikely to change soon.
The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”
Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast). The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.” Something strange, indeed.
Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law. Recall that President Obama, the most famous advocate of this kind of jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.
The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust. There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).
The “Rooney Rule” is the latest debasement of academia. The controversial halftime show at Super Bowl 50 demonstrated–if any proof was needed–that the NFL is in the entertainment business. The football cartel's ratings-conscious bean counters carefully assessed television demographics to maximize the spectacle's appeal to the broadest possible audience–bread and circuses for the masses. It worked. The musical trifecta of Coldplay, Beyoncé, and Bruno Mars was a cynical mishmash of genres that helped attract a viewing audience of nearly 112 million people to an otherwise boring game. Professional football is big business, and it was fitting that the 50th iteration of…
At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment. Gans makes two points:
First, he claims that in
the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law. That was a core principle of due process, to which the federal government was bound under the Fifth Amendment. (The Supreme Court has said as much repeatedly.) In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.
Gans point here is problematic. It is true that during these debates, people often argued about equality. But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement. It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government.
Cambridge, MA, April 1, 2014
In a move designed to foster diversity and to create a university that “thinks like America,” Dr. Drew Gilpin Faust, the President of Harvard University announced yesterday that the school will embrace egalitarian admissions. The school will no longer give priority to students with good grades, high SAT scores, and impressive extra-curricular activities. Such policies have, Dr. Faust acknowledged, created an “elitist” and “inegalitarian” atmosphere at the college. “It is unacceptable in 2014 to be favoring the intelligent over the unlearned, and the energetic over the slothful,” she proclaimed.
Hillsdale College is justly acclaimed for not taking federal funds. The Michigan liberal arts college even employs an attorney to make sure it does not unintentionally receive any. It fears the intrusiveness of federal regulations on its academic freedom and the quality of student life. (I taught for Hillsdale’s Washington, DC program, before they raised its standards. In fact, Larry Arnn, as President of the Claremont Institute rehired me there and, perhaps fearing the consequences of his decision, shortly left and became President of Hillsdale.)
While the Supreme Court’s decision in Fisher is understood as tightening somewhat the scrutiny of a university’s admission plan that pursues racial diversity, the question is how much it does so. I thought it might be useful to explore the majority’s discussion a bit by considering on which issues universities are entitled to deference.
The Fisher majority drew the familiar distinction in the Equal Protection context of 1) the requirement that government pursue a compelling state interest and 2) that it do so with narrowly tailored means.
The decision in Grutter was unusual in that it conferred deference on the university as to its admission plan, even though the university was subject to strict scrutiny. The question addressed in Fisher was whether the deference extended only to the end or to the means as well. Fisher held that the deference extended only to the end.
Under Fisher, the Court held that the end of pursuing a diverse class is a compelling interest. The diversity is not supposed to be solely that of racial diversity, but instead a diversity of various aspects “of which racial or ethnic origin is but a single though important element.”
A key question here is, how much of the diversity can be racial? How much weight can be given to race in choosing the class? The Court indicated that the diversity cannot involve a specified percentage or quota based on race. But how important can race be – as compared to other types of diversity such as geographic and as to merit factors such as grades and test scores?
In Fisher, the Supreme Court majority clarified Grutter v. Bollinger’s holding that higher education admission plans that promote diversity by taking race into account are subject to strict scrutiny. As he did in Gutter and Parents Involved in Community Schools v. Seattle School District No. 1, Justice Thomas wrote a significant separate opinion setting forth his views on the issue.
Thomas’s concurrence in Fisher made the following points:
1. Traditional strict scrutiny for race discrimination requires a compelling state interest, which is either national security or remedying past discrimination. The educational benefits from diversity are not a compelling state interest.
2. Brown and its progeny rejected the idea that a school’s survival would be a compelling state interest. It had been claimed that desegregation would lead to public schools being closed down, but that was not thought adequate to justify segregation.
3. The desegregation cases rejected arguments virtually identical to those advanced by Texas: that differential standards prepares Texas’s students to become leaders in a diverse society, improves interracial relations, and is a temporary necessity because of the enduring race consciousness of society.
4. While Texas probably believes it is helping minorities, racial discrimination is never benign. The worst forms of discrimination, such as slavery or segregation, were justified as beneficial. Here blacks and hispanics are harmed as they are far less prepared for admission, would have access to college in any event, and are stamped with a badge of inferiority.
In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. In this post, I want to explain why I argue these statutes are weak evidence in favor of affirmative action.
There are two basic reasons why this evidence is weak. First, these statutes are federal statutes and therefore not subject to the 14th Amendment. Second, the statutes relied upon by the critics are not good evidence of race based action.
Let me start with the fact that the statutes are federal statutes. The Equal Protection Clause and the Privileges or Immunities Clause (the two provisions that might impose equality requirements) only applied to the states, not to the federal government. Thus, when Congress passed these laws there is no reason to believe that it was interpreting or implementing the 14th Amendment, because the Amendment did not apply to the federal government.
The critics reply that it is unlikely that a Congress that enacted the 14th Amendment would have violated the principles in that amendment when passing federal statutes. This seems like a potentially strong argument at first, but not upon examination. This argument assumes that the same rules ought to apply to the states and the federal government. But clearly the enactors of the 14th Amendment did not believe that, since they did not apply the Amendment to the federal government.
Understanding Congress’s actions in this area requires offering an explanation for why the 14th Amendment was applied to the states, but not to the federal government. In my view, the Amendment was applied to the states, but not the federal government, based on two considerations. First, Congress needed a strict limitation on the states to stop racially discriminatory actions, but did not need one as to the federal government, because the latter was thought to be more trustworthy regarding the treatment of minorities. Second, there was not full agreement on the content of the equality requirement. While people were willing to compromise on that requirement as to the states, because of the need for a constitutional restriction on the states, they did not feel the same need to compromise as to the federal government. Under this view, then, the fact that Congress might have passed laws that benefited (or harmed) blacks would not be indicative of the meaning of the 14th Amendment, because the Amendment neither applied to the federal government nor was intended to do so.