It’s time for the sun to set on racial preferences in college admissions | Tech US News


The most high-profile Supreme Court case this term is undoubtedly the challenge to the use of racial preferences in university admissions, in which the court heard five hours of arguments last week. Given that the court annulled the last mandate Roe v. Wado and recognized the “abandonment” of Lemon v. Kurtzman—which established a soft test for establishing an unconstitutional establishment of faith—is Regents of the University of California v. Bakke the next precedent from the 1970s on the cutting edge?

Bakke is a 1978 case in which one justice, Lewis Powell, planted the seeds for the whole diversity conceit that now seems to be a higher priority in higher education than truth-seeking, civil discourse, and knowledge transfer. Four justices would allow race-based admissions decisions to eliminate past prejudice, while four others would ban them altogether. Powell, meanwhile, voted to repeal racial quotas at the UC-Davis School of Medicine, but to allow race to be used as one of many factors to advance what he believed was a compelling government interest in educational diversity.

A quarter of a century later, the Court, by a 5-4 majority, upheld this rationale for diversity as part of a comprehensive race-conscious admissions program (Grutter v. Bollinger, v. University of Michigan Law School), while rejecting a mechanical system that assigned race a fixed number of points (Gratz v. Bollinger, concerning an undergraduate college in Michigan). The swing vote in those cases, Justice Sandra Day O’Connor, suggested that “in 25 years, the use of racial preferences will no longer be necessary to advance the interest that is granted today.”

Well, here we are two decades later, and the trend lines aren’t looking good for the organic demise of judging college applicants by skin color. But in two cases brought by a civil rights organization called Students for Fair Admissions, the Supreme Court has a chance to end the practice.

The group sued the nation’s oldest private and public universities, Harvard and the University of North Carolina, respectively, presenting compelling evidence that those schools use racial preferences to a far greater extent than Bakke and Grutter would have allowed. For example, at any given level of academic performance, the acceptance rate for African-American applicants is several times higher than for white and especially Asian-American applicants. Put another way, as Harvard lawyer Seth Waxman—who served as general counsel in the Clinton administration—has acknowledged, 45% of blacks and Hispanics arrived at Harvard because of racial preferences.

At the same time, the lawsuit showed that the number of Asian Americans at Harvard (and other elite schools) has remained relatively flat even as their share of qualified applicants has exploded in recent decades. This is sadly ironic, since Powell called Harvard a model admissions program without acknowledging that its “holistic” approach originated as a way to limit the number of Jewish students.

Perhaps that’s why most justices were skeptical of arguments for maintaining racial preferences, or “race-conscious admissions,” as school advocates call them. And that majority includes the otherwise feisty Chief Justice John Roberts, who has strongly opposed government-sponsored racial predation in a variety of contexts — including the most recent collegiate affirmative action case, Fisher v. UT-Austin II, in 2016.

Most famously, Roberts wrote in the busing case 15 years ago: “The way to stop discrimination based on race is to stop discrimination based on race.” So, when Waxman compared the occasional instance when race matters to the times when an orchestra needs an oboist, Roberts wryly remarked, “We didn’t fight the Civil War over oboists. We fought a civil war to end racial discrimination.”

But could the Supreme Court still strike some sort of compromise, perhaps ruling against Harvard and UNC, without overturning the entire diversity regime? Following the Dobbs decision last term, it seems unlikely that mere adherence to precedent will lead to upholding racial preferences — especially given that, unlike the national divide over abortion, affirmative action is extremely unpopular, even among racial minorities.

Furthermore, Grutter did not create a legitimate reliance interest. It could not because, as the court held in overturning racial preferences in public procurement (Adarand Constructors v. Peña, 1995), when precedent “undermines the fundamental principle of equal protection of personal rights,” it is the principle, not the precedent, that “must prevail “.

And since Grutter himself has demanded that such policies be “time-limited” and face “sunset provisions” that require periodic “reviews to determine whether racial preferences are still necessary,” the attorneys’ inability Harvard and UNC to define the necessary conditions for the endpoint was telling.

What the court granted in Grutter was a temporary, grudging exception to America’s equal protection principles that, unfortunately, metastasized into a threat that rippled through the legal landscape, the economy, and society as a whole. Despite Grutter’s own language, the case was taken as a sign that it might be legally permissible outside the context of acceptance for government actors to discriminate on the basis of race.

Even in a university environment, Grutter did not achieve the educational or other benefits that his advocates laud. Rather than creating academic communities with a wide range of perspectives and life experiences, or even redressing social injustices like slavery—which the Court never accepted as a constitutional justification for racial preferences—race-based admissions served to further entrench wealth and privilege, while corporate diversity efforts have led to a culture of groupthink.

In short, it is long past time for the court to recognize that Bakke and Grutter departed from the principles of equal protection and created a harmful racial imbalance under the guise of diversity. In June, the court is likely to reverse this deviation and begin to rehabilitate American ideals.

That would be a good, healing development in this polarized time.

Ilya Shapiro is director of constitutional studies at the Manhattan Institute. He is the author of the book “The Supreme Mess: Judicial Nominations and the Politics of America’s Highest Court” and Shapiro’s hammer Substack Newsletter. He also invested amicus brief supporting students for equitable admissions in the Harvard and UNC cases.


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