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Most of us have been raised with the teaching that no citizen of the United States is supposed to get special treatment — good or bad — based on their race. That may not always be how it works in practice, but it’s the goal we’re all supposed to strive for. It’s a matter of simple justice and fair play.
By the time we get to college, though, that principle’s taken a fierce beating — not least at the hands of the federal government, which just made the situation worse than ever.
On June 23, the Supreme Court handed down two long-anticipated rulings, both touching in fundamental ways on racial preferences in university admissions. At first glance, the news might appear mixed. It’s not. The rulings are nothing short of a disaster for fairness in American higher education.
First the part that sounds like good news. In the first ruling, the court struck down an undergraduate-admissions policy at the University of Michigan that awarded 20 points on a 100 point scale to all candidates from “under-represented minority groups” — which is to say, some students get freebies. The court held (correctly) that violated the Equal Protection Clause (that “no state shall deny to any person within its jurisdiction the equal protection of the laws”) of the 14th Amendment.
It’s an important ruling. Affirmative action relies on just this sort of arbitrary bonus. Ruling against Michigan’s policy is a deathblow to affirmative action as traditionally practiced.
So far, so good. Yet the court’s second ruling reversed whatever gains might have been claimed for the first — and then some.
In Grutter v. Bollinger, a case concerning admissions to the University of Michigan’s law school, the court held that discrimination is legitimate provided that it can be shown to promote “diversity” in university admissions.
This isn’t a new idea. But the first time it came up in the court (the 1978 Bakke case), only a single judge (Lewis Powell) thought it worth endorsing. Since then practically every university has developed systems along Powell’s lines. Now the Supreme Court has given the stamp of legitimacy to discrimination across the nation. From now on, racially discriminatory admissions practices are perfectly legal in our public universities as long as those practices are carried out under the guise of “diversity” and don’t involve quotas.
As readers of my previous columns will know, I’m no great fan of affirmative action. Among other things, affirmative action is inconsistent with the principle of merit (or the idea that you get what you earn), penalizes innocent people for the crimes (real or imagined) of their ancestors, unfairly rewards minority students on the mistaken notion that minority status automatically equals “disadvantage” and feeds a sense of grievance among students from “historically under-represented groups” who’d be better off hitting the books.
Bad as all that was, affirmative action has two great advantages over the policy that is shortly to replace it. Its very crudity — typically, a percentage or quota system that set aside a certain number of seats in every entering class — ensured that it was carried out under the public eye and in no uncertain terms.
Just as importantly, affirmative action was conceived as a temporary measure: The framers of the policy said they intended it as a corrective to past discrimination. Once the representation of women and minorities in public institutions would be brought in line with that of the population more generally, affirmative action would run out of reasons to exist. (So went the theory, anyway.)
Nothing of the sort can be said for “diversity.” It’s promoted not by quotas and set-asides, but by carefully crafted “outreach” programs and racially loaded admissions criteria – “life experience,” “disadvantage” and “diversity” itself — that give an advantage to minority candidates without ever saying as much. Thanks to such devices, racial discrimination in admissions is that much more difficult to identify and combat.
Worse yet, the diversity rationale in university admissions, in stark contrast to affirmative action, has no end in sight. Since “diversity” — or the idea (patently false but endlessly repeated) that exposure to students of different racial and ethnic backgrounds is essential to a modern education — is today represented as a good in itself, there is no reason to think that there will ever be enough of it. Affirmative action was supposed to be a temporary measure; diversity is for always.
All of a sudden, affirmative action is beginning to look pretty good by comparison.
To imagine what the recent court decisions will mean for American education, just look at the case of California. In 1996, California voters overwhelmingly passed Proposition 209, a state ballot initiative outlawing racial preferences in state hiring and admissions. As a result, under-represented minority admissions (that is, everyone excluding whites and East Asians) to the higher echelon campuses of the University of California system sharply dropped. The university’s response? To embark on a very successful but extraordinarily expensive, multi-year campaign to promote diversity.
California’s top campuses are now more diverse. But diversity has come at a price: The SATs have been dumped, thousands of qualified candidates have been turned away in favor of less qualified ones and countless millions of taxpayer dollars have been flushed down the black hole of the university’s good conscience. Meanwhile, the quality of education at the University of California has in no obvious sense improved.
Thanks to the recent Supreme Court rulings, California’s experience is soon to become the nation’s. Indeed, to some degree this has already occurred. Until now, however, one could always find solace in the idea that the diversity rationale was legally dubious; perhaps one day it would be overturned. After June 23, it looks like that prospect is far down the road. (Even if new justices with different views join the Supreme Court, it'll take many years before further legal challenges to the diversity rationale work their way through the lower courts.)
Unfortunately, there’s more at stake here than the composition of each college’s freshman class. The diversity rationale sets up a double standard. On the one hand are those students who are understood to contribute to on-campus diversity: blacks, Latinos, American Indians, Pacific Islanders, Southeast Asians. On the other are those who don’t: whites and East Asians. What diversity’s proponents really want is more of the former and less of the latter. They will now get what they want.
But getting what they want will have immediate consequences, not just for favored minority groups, but also for majority group students. The recent Supreme Court rulings will entrench a baldly racist system of legal preferences worse than any we have seen before.
Once again, the case of California is instructive. Beginning in 1999, whites became a minority of the state population; they are today estimated at 47 percent of the total. As a result, California is today a state of minorities, the first in the nation. You’d seek in vain, however, for evidence of public concern over the representation of the state’s largest minority — whites — in its public institutions. They, too, are today significantly “under-represented.” (Last year they made up only 37 percent of entering freshmen.) If “diversity” were applied fairly and across the board, the recent rulings might just be palatable. But it isn’t and it won’t be.
Now that the Supreme Court has given its stamp of approval to the diversity rationale in admissions, one can expect the same thing at universities across the country. Indeed, in its majority ruling, the Court approvingly cited the case of California as an example of how public universities might tailor their admission policies in the post-affirmative action era.
In a moving commentary issued the morning of the Supreme Court decisions, African-American legal scholar Carol Swain (who I discussed in one of my earlier columns) asked:
How long can a nation as diverse as America sustain racial and ethnic preferences without fueling increased racial and ethnic conflict? How long can the American people be satisfied with public policies that give advantages to the offspring of new immigrants over the needs of Americans with deep roots in this nation? Where do we go from here? Neither Democrats nor Republicans have offered real leadership on these issues. The Supreme Court has failed America. By not exercising courage, our elected and appointed officials have placed us on a dangerous collision course made even worse by the growth of identity politics.
June 23 should have been an occasion for recognizing all the ways in which America has changed and an opportunity for realizing the promise of our nation: that all people are created equal and have a right to equal treatment under the law. If our future’s to be brighter, we’re going to have to get back to our basic principles. The new court decisions have made that more challenging.
Copyright © 2003 David Orland. All rights reserved. International copyright secured.
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