One Cheer for the Schuette Decision

The devious methods universities use to ignore bans on racial preferences.

scotusbuildingMany conservatives are applauding the recent Supreme Court Schuette decision upholding the right of the citizens of Michigan to ban racial preferences. As Charles Krauthammer writes, the 2003 Grutter decision, which like Schuette did not ban racial preferences altogether, was correct: “The people should decide. The people responded accordingly. Three years later, they crafted a referendum to abolish race consciousness in government action. It passed overwhelmingly, 58 percent to 42 percent. Schuette completes the circle by respecting the constitutionality of that democratic decision.”

This approval of Schuette, however, ignores 2 problems. The first is that a state’s ban on racial preferences doesn’t end racial preferences; it just spurs universities to find more creative and subtle ways to take race into account. Second, it leaves in place the duplicitous, ideological, and incoherent doctrine of “diversity” that ever since the 1978 Bakke decision has been the “compelling state interest” justifying taking race or sex into account.

In November of 1996 the voters of California passed Proposition 209, the Civil Rights Initiative, which amended the state constitution to forbid the state from “discriminat[ing] against or grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Yet despite the clear-cut legal prohibition, race-based preferences and policies live on in California higher education.

Take, for example, the process of hiring faculty in the California State University system. Despite the “end of affirmative action,” every hiring committee still must have an “affirmative action” representative, which after Proposition 209 was renamed the “Equal Employment Opportunity designee.” Despite the name change, the EEO designee performs the same function based on the same assumptions the voters supposedly rejected. The purpose of this representative is not to make sure the most qualified and suitable person is chosen for the position regardless of race, sex, or any factor forbidden by the 1964 Civil Rights Act. The EEO designee can be from any department on campus, and so in most cases will not have much awareness of the qualifications required for the position. Yet despite this lack of knowledge, no hire can go forward without the EEO representative’s approving signature at every step of the process, in order to make sure no qualified minority candidate has been unjustly passed over. But by definition the only “qualification” that matters to the EEO designee will be race or sex.

Other race-based procedures in hiring are still in place. All the applicants in the pool are identified by race and sex, and this information is part of the hiring process. When finalists are invited for campus visits, their race and sex, and the race and sex of the hiring committee members, are identified and made part of the process as well. If “preferential treatment” based on race or sex has been presumably outlawed in California, why is this information still being gathered and made part of the hiring process in a state-funded institution? Moreover, informal pressure can be brought to bear by deans and provosts to encourage taking race and sex into account. For example, a position can be approved, or an additional position granted, with the verbal proviso that a minority candidate is the finalist.

Nor has Proposition 209 prevented race from being factored into admission decisions. Any applicant with a Hispanic surname – no matter how privileged, or even if he is a Caucasian from Spain or Latin America – will be assumed to add “diversity” to the campus community and given an advantage over a better qualified white applicant. Universities also can add a proxy for race such as “overcoming challenges or difficulties” or “obstacles overcome,” code for experiencing racism and prejudice, and weight those subjective factors enough to overcome any deficiencies in grades or test scores. This sort of “holistic score” is already in use, and some research indicates that it functions as a substitute for race. Richard Sander’s study of UCLA’s admissions procedures found that a higher percentage of blacks and Latinos are accepted than are whites and Asians with the same “holistic score.”

The second, and more pernicious problem, is the idea itself of “diversity,” the conceptual sleight-of-hand that allowed Justice Powell in the Bakke case to rationalize the continuing use of race in college admissions even as he was compelled to acknowledge that most affirmative action programs at that time were simply naked quota systems in clear violation of the Civil Rights Act. Powell argued that only a “compelling state interest” could justify exceptions to the Civil Rights Act’s ban on discrimination by race, and that “diversity” and its presumed benefits to higher education was indeed such a “state interest.” Schuette has left this dubious rationale in place, thus justifying the sort of trickery outlined above. But this “diversity” is a dishonest and incoherent concept, masking an ideologically skewed interpretation of history in which the wicked white man has oppressed and excluded the dark-skinned “other.”

Proponents of diversity hide this racialist and ideologically loaded idea by using the old-fashioned bait-and-switch. Diversity, they tell us, is just about acknowledging and respecting the ethnic and cultural differences that make up the wonderful mosaic of American society, and ensuring that the university campus represents and benefits from that diversity. But the call to respect the various cultures comprising American identity is nothing new, and existed long before “diversity” became university dogma. 

At the beginning of this century, for example, the vast influx of immigrants from Slavic countries and the southern Mediterranean sharpened the debate between what was then called “pluralism” and “assimilation.” Nor were melting-pot assimilationists the only point of view heard. Pluralists at that time made the same argument the diversicrats make today, as can be seen in this statement from 1937: “No one culture contains all favorable elements, but each group that makes up the total American population has unique values, and . . . the nation will be richer and finer in its cultural make-up if it, the country, conserves the best that each group has brought.” The writer goes on to argue that “the fundamentals of their heritages be preserved for generations.”

For most of this century, then, there were those who argued against completely assimilating away cultural differences that they recognized contributed to American identity. But if the call to acknowledge and “respect cultural differences” is nothing new, then what really characterizes current “diversity” doctrine? It is the identity-politics melodrama of white Western oppression and intrinsic racism, which explains the various contradictions and incoherent assumptions of diversity as it is actually practiced.

Real diversity is enormous in its variety, encompassing scores of ethnic groups, economic strata, regions, political views, and religions, to name a few, not to mention the various possible combinations of these categories. A poor, Catholic, Mexican-Indian immigrant farm worker from Oaxaca, for example, has a very different identity from that of a middle-class, secularized, suburban 3rd-generation mestizo Mexican-American from Menlo Park. The fact that their surnames are “Hispanic” doesn’t tell us anything about what each can contribute to campus “diversity.” The middle-class Mexican-American will probably have more in common with a middle-class white kid than with the Indian immigrant. Yet in the university, the second “Hispanic” applicant will be courted and presumed to offer more “diversity” than a poor rural white kid who resembles in many respects the Indian farm worker.

Here is the illogic of most universities’ idea of “diversity”: it functions in terms of stereotypical, simplistic race-based categories that ignore all the other ways in which people are diverse, all the other benefits of those particular “diversities” that could enrich the university. Certainly most universities today, dogmatically secular and philosophically materialist as they are, could use the diversity that more religious believers could bring. And given that faculties overwhelmingly comprise progressives and leftists, a concern with genuine diversity would demand active recruitment of conservative students and faculties.

Moreover, of all the various categories of diversity, whether ethnic, economic, political, or religious, most universities are really interested in only a few, those minorities that the Civil Rights industry recognizes: Hispanic, black, and occasionally any Third-World “person of color” (the disproportionate academic success of Asians has banished them from this select group). Less politically connected groups, however, simply don’t count. Armenians were subjected to genocide in Turkey and discriminated against in California for decades, but they’re not considered to be as “diverse” as a black dentist’s son who grew up in the suburbs. Many other ethnic groups, such as Portuguese, Italians, Russians, Sikhs, or Poles, are lumped together into the meaningless category “white” and thus are deemed irrelevant for increasing campus diversity. Finally, economic class doesn’t count when it comes to campus diversity. Poor minority students, and poor white students, for that matter, are underrepresented on university campuses––at the 200 most selective universities, only 5% come from the bottom 25% of the income scale. Indeed, 92% of blacks at elite colleges are from the top 50%.

This brings us to the real basis for institutionalizing diversity: not to give voice to the actual variety of Americans in terms of culture, religion, politics, economic status, or region, and to enrich college campuses with that genuine diversity, but to privilege the anointed victims of white oppression, reinforce progressive ideology, and pressure governments and institutions to make reparations for that history. This ideology in turn serves the race industry and its parent company the Democratic Party, which implements policies that benefit that industry and big government bureaucracies, at the same time creating political clients for both.

“Letting the people choose,” as Schuette does, will not prevent universities from using race, or remove the rationale for discrimination that serves the ideology corrupting American universities. And it does not address the Supreme Court’s inconsistent commitment to letting the people choose. The people of California chose traditional marriage when they passed Proposition 8, yet last year the Supreme Court by one vote refused to defend the right of the people to choose by invoking the litigants’ lack of standing (see Anthony Kennedy’s dissent). Given these problems, one cheer is all the approval the Schuette decision deserves.

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