Posted in Rants on April 11th, 2012 by Ed

Although it has not gotten much attention yet, but the practice of using race as a factor in university admissions is not long for the world. When the Supreme Court hears and decides Fisher v. University of Texas later this fall (just in time to inject some racial invective into the General Election) the 5-4 decision striking down the Texas system will surprise exactly no one. Anthony Kennedy has dissented in every affirmative action case the Court has ever heard. His vote here is utterly predictable, especially given his dissents in Grutter/Gratz v. Bollinger, of which Fisher is essentially a replay. The decision in Fisher will affect the handful of states that have not passed laws banning race-based admissions. It turns out that it's pretty easy to get a state full of white people to support a ballot measure that eliminates affirmative action.

I have none of the typical White Guy hangups about affirmative action. Since around 2000, right before the Grutter and Gratz cases were jointly decided, there has been a seismic shift on the issue – not in public opinion, but in the legal logic used by universities to defend the practice. When AA was first institutionalized in the 1960s, its enumerated purpose was to redress historical grievances. After a few centuries of legal discrimination, segregation, and slavery, one could hardly expect that black students – and remember, we're talking about an era in which the schools were still segregated and some state universities had to be browbeat into admitting blacks – would immediately perform on par with white students who had received so many comparative advantages over the years. Although schools may no longer be de jure segregated, they remain mostly segregated nonetheless. So affirmative action-type programs have continued as the black/white(/Hispanic) gap in educational performance has lingered.

Eventually, perhaps out of fear that courts were becoming less favorable to the "righting historic wrongs" argument, academia began defending its practices on what we might call a Value of Diversity argument. That is, the university and the state have a compelling interest (as O'Connor's majority decision admitted in Grutter) in obtaining and providing "the educational benefits that flow from a diverse student body."

I have never put stock in the "Affirmative action is insulting to minorities" argument, seeing as how I have never heard it come from the mouth, pen, or keyboard of anyone who was not a white conservative. This, however, is not only a legally tenuous argument but one that rests on a remarkably insulting premise: that diversity has educational value, and, by implication, that white students will miss out on it if the university does not admit enough black and Hispanic students. There is no other way to read that, especially as explained in Grutter. This is a drastic change; rather than black students benefiting from programs designed to benefit them, it's the majority white students who benefit from having some Colored People around as scenery. The schools are saying, in a sense, that they need to admit blacks and Hispanics in order to provide some sort of Diversity Experience for whites.

I suppose we could have a philosophical debate about how the ends justify the means. That wouldn't be terribly convincing, and more importantly it ignores the reality of the impending Fisher decision. What happens afterward will be telling. Hopefully universities will reorient themselves toward a policy that tells black and Hispanic students, "We want you here," which is much different than, "We need you here." Fortunately, some states where the universities operate under bans on racial preference have already proven that it is possible to maintain elite programs that recruit and accept diverse student bodies without resorting to tactics that will irritate Samuel Alito. There is more to any college applicant than a test score, so I guess admissions boards will just have to do some actual work and read applications rather than simply sorting data in Excel spreadsheets.