Hard on its landmark victories for judicial and Constitutional integrity last term, the Supreme Court will hear oral arguments this month on two cases challenging admissions policies at Harvard and the University of North Carolina. If decided rightly, both cases should lead to the banning of unconstitutional, discriminatory racial preferences in university admissions.
After years of previous cases in which the Supreme Court tried various work-arounds to avoid stopping discrimination, maybe this year the Justices will get it right.
From its beginning in the 1978 decision Regents of the University of California vs. Bakke, the jurisprudence of subsequent cases have, as Justice Clarence Thomas’ dissent in the 2003 Grutter vs. Bollinger case put it, “refus[ed] to define rigorously the broad state interest” served by “diversity,” and thus demonstrate specifically the “educational benefits that flow from student body diversity,” as Justice Anthony Kennedy in Fisher v. University of Texas (2016) vaguely defined that “compelling state interest” allegedly justifying discrimination on the basis of race.
As we’ve seen for 44 years, this vacuum created by the lack of clarity about what “diversity” is exactly, and how it specifically enhances educational outcomes, has been filled by illiberal ideology and factional politics that serves partisan purposes rather than educational ones. The “diversity,” then, that courts, businesses, educational institutions, and government trade in is so broad and simplistic that it guarantees the concept will be used to pick political and racial winners and losers.
Let’s start with the idea of “diversity” that supposedly justifies violating the Civil Rights Act and the 14th Amendment. Actual diversity is light-years more complex than the old “scientific” racist categories of “black,” “white,” “Asian,” and later “Hispanic,” based on skin color, hair texture, or other superficial characteristics. Relying on these physical criteria ignores the real diversity that appears at the level of ethnicity: socio-economic class, language, dialects, customs, mores, folkways, regional differences, faith, and political preferences. Indeed, so bizarre has this crude “diversity” become that a poor white kid from a region historically impoverished who supposedly enjoys “white privilege” doesn’t add as much “diversity” to the student body as an affluent black student does.
Race-based preferences, then, ignore all those more interesting and meaningful markers of diverse identities––except the last one, politics. Particularly in education, “protected” categories like “race” and “gender” take precedence, and traffic in a “diversity” that camouflages a rigid intellectual and ideological orthodoxy. We used to called it “multiculturalism,” but now it sports the Orwellian moniker “woke.” The grand narrative of the “woke” is the melodrama of permanent white racial oppression of selected victims “of color.” “Diversity” now has been joined to “equity” and “inclusion” in order to define an ideology that is homogeneous, unequal, and excluding––the opposite of real diversity.
This brings us to the so-called “benefits” racial set-asides are supposed to provide students. In fact, the consequences of this illiberal ideology are not beneficial but tyrannical: free speech and dissent are “cancelled” by anti-discrimination law that privileges subjective, even arbitrary terms like “hostile” and “intimidating,” which end up meaning whatever the “protected” victims think they do. Similarly, Constitutional protections for those accused of sexual misbehavior or “hate” crimes are ignored by campus tribunals that “cancel” the violators of group-think orthodoxy.
Then there are the poorly substantiated claims that “diversity” improves inter-ethnic relations and understanding. In fact, the empirical evidence that does exist shows that increasing a politicized “diversity” in universities has been more likely to exacerbate racial divisions. Courses, programs, fraternities, sororities, dorms, scholarships, grants, graduation ceremonies, social space, and campus facilities are segregated, and balkanize students into ethnic silos. How does this de jure “Jim Crow 2.0” segregation provide “benefits” to students of any ethnicity?
And don’t forget the damage done to the very students affirmative action is supposed to help. Most grievous is competitive, top-ranked schools lowering their standards to admit students “of color” just so they can juice their “diversity” stats, a sine qua non for the academic administrator on the make. As a consequence, this “mismatching” of students who could flourish in a second- or third- tier schools places them in more competitive top-tier ones, where they struggle and become discouraged. If they do graduate, they often leave with dubious majors in various politicized “studies” programs, majors which have little value in the job market. No wonder drop-out rates and time-to-graduation numbers for black and Latino students are dismal.
The result, as Richard H. Sander and Stuart Taylor Jr. in their 2012 book Mismatch document, “is much greater rates of dropping out, earning poor grades, or finding refuge in easy majors like ethnic studies that have very few prospects for employment. They also have a harder time passing licensing tests such as the bar exam, and earn fewer degrees in science and engineering than whites and Asians.”
Meanwhile, lower admission requirements continues the general degradation of higher education curricula and grading standards by watered down foundational skills and fundamental knowledge, while increasing endemic politicization by “woke” propaganda like Critical Race Theory; tendentious anti-Western melodramas; and illiberal identity politics. It’s hard to see the “benefits” or improved “educational outcomes” for all students in this drastic corruption of the university’s traditional mission.
The height of racial preferences’ incoherence and injustice, though, is the harm done ethnic Asian students, the plaintiffs in the two cases currently before the court. Their exposure of admissions criteria that claim to treat race as merely one of many factors in deciding who gets in, has shown that in fact it is the determining factor, a practice which the Supreme Court already has ruled is illegal. As Jason L. Riley writes in the Wall Street Journal,
It’s long been clear that elite universities are abusing their discretion and violating those parameters. In a brief for the plaintiffs, Duke economics professor Peter Arcidiacono demonstrates that an applicant to Harvard with typical credentials has a 25% chance of admission if he’s Asian. But if you leave the credentials the same and change his race to black, the chance of admission climbs to 95%. For out-of-state applicants to UNC, the racial disparity in the chances of admission is even starker. Obviously, these schools are using race as the decisive factor.
Just how does blatantly discriminating against one ethnicity––one “of color” that historically was explicitly banned from the country by laws like the 1924 “national quotas” immigration restrictions, and the 1882 Chinese Exclusion Act––to benefit another, improve “educational outcomes”? Is it not rather a repudiation of the idea of equal justice, and evaluation of individuals on the basis of merit, when political favoritism ends up determining outcomes?
Finally, how is it beneficial to all students to rob them of the most important boon of a liberal education: how to think critically and “to know the best that has been known and thought in the world, irrespectively of practice, politics, and everything of the kind; and to value knowledge and thought as they approach this best, without the intrusion of any other consideration whatsoever,” as Matthew Arnold put it, and “through this knowledge, turning a stream of fresh and free thought upon our stock notions and habits, which we now follow staunchly but mechanically.” In other words, cultivating the diversity of free minds and ideas, the only diversity that a university should cultivate.
Finally, the dominance of an illiberal, antihumanist “stock notions and habits” of “woke” ideology “that today is followed staunchly but mechanically,” reflects the decay of liberal education and its remit to train individuals for ordered liberty and civic virtue. And one abettor of this failure has been racist, politicized, and illiberal affirmative action policies. It is long past time to respect the law and the Constitution, and to eliminate policies that are blatantly discriminatory and hurt the very people they’re supposed to help.
Great compilation of points.
Seems odd though to hope Supremes correct what some might say they themselves suffer from.
Your point will be taken when the final votes are tallied. That doesn’t say much for the integrity of the Court.
As someone who has litigated in Federal courts for decades, couldn’t help agreeing. Judiciary is just another branch of government and government cannot be trusted
Color me pessimistic. A privilege once conferred is nearly impossible to remove. And with Justice Roberts more concerned with preserving the institutional integrity of the Court (while the Dems rant that the Court is illegitimate any time a decision doesn’t go their way) I do not believe there will be a decision that drives a stake through the heart of affirmative discrimination.
Abortion was a constitutional right.
I am also pessimistic. The Supreme Court is prone to cowardice, but the bravery of Clarence Thomas might inspire other members.
The removal of affirmative action and the restoration of merit would do much to shore up the crumbling walls of western civilization.
Abortion is not an explicitly stated Constitutional individual right but it is an implicit right if one defines individual rights objectively by demonstrating the facts of reality. If you take individual rights seriously deriving them consistently from the facts of reality then abortion is an unalienable, individual, right.
Sending the issue of the right to abortion back to the states does nothing to clarify and resolve the issue of the right to abortion versus the alleged claim that a fetus has rights that supersede and cancel the rights of the pregnant woman.
Either unalienable rights are unalienable or they’re not, if you reduce rights to the status of favors, privileges, permissions, granted or denied by the state, you have destroyed the concept of unalienable rights.
The really great thing about “implicit rights” is you can just make them up.
Individual rights begin with self-ownership, the ownership of your mind and independently existing body. The individual that does not have ownership of her independently existing body is a serf to any and all others. Neither an embryo or a fetus have an independently existing body. Independence does not mean self-supporting, once the child is born it acquires its individual rights.
“The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible.” – Ayn Rand
Murder is not an unalienable and individual right, you dogmatic retard.
Not to sound cynical, but your point has been proven out in the past. Never thought affirmative action fair or right.
Mr. Thornton’s paper is well done and explains the damages of affirmative action.
Dont agree. People should be allowed to discriminate as much as they want
That means Jews should be allowed to hire only Jews. Catholics hire only catholics, Ditto with Protestants, Mormons, and atheists.
And yes, Whites hiring only whites, Blacks with Blacks, Asians with Asians, etc.
That goes for schools, jobs, and even neighborhoods. At least on the Federal level.
However if the state if New York wants to force disparate groups to work together, I say go for it. Same in the reverse
If at this point we cannot work together without having a gun pointed at our heads then we shoildnt be working together
That already exists except for the WHITES only part!
There is rational discrimination and there is irrational discrimination. In a Free Market Capitalism society irrational choices are eventually punished by the facts of reality.
If you refuse to hire or promote a talented black man because he’s black somebody else who chooses rationality over irrationality will. A free market produces fierce competition for the best quality of everything and everyone available. Those individuals who want to indulge in any form of irrationalism, any form of unreason, for too long, get left behind.
islam is irrational and it’s been around for 1400 years. Leftism is irrational and it’s been around for nearly 200. Randism is irrational and it’s been around for 40 years. Tranny tyranny is supremely irrational and it’s been around for less than 2 years.
Big time DERP.
Christianity is irrational. Objectivism is rational.
Christianity is faith based and there’s nothing irrational about faith.
Objectivism is actually selfish hedonism and that’s purely emotional.
Irrationality has always been part of humanity.
Dumbass. Grow up.
I did grow up. I stopped believing in Santa Claus, the Tooth Fairy, and your Magic Friend In The Sky that’s coming to save you and take you to an Eternal Magic Utopia.
When are YOU going to grow up and stop your magical thinking?
It is a very old concept. It is referred to as the “the Right of Association”. Today we have certain races that have set up places where only members of their OWN RACE ARE ALLOWED. Of course if you happen to be Christian, white ,etc., you are effectively forbidden to do the same.
The only way to end the evil of discrimination is… more discrimination!
Wait…. whut?
Bingo! As long as one group is required to fight for equality, there will be none, & that will poison the society.
That is the aim of our enemies; to divide & conquer us. They have been agitation for racial hatred & resentment for decades. It has begun to pay off for them. As long as we feed inequality, we feed racism, no matter which race is supported.
Lenin told his agents to hold us to our impossible standards of perfection, in order to destroy us. This is exactly what they are doing here. Instead of insuring that all races are given equal opportunity, they claim that one must be favored to achieve equality. No, the system works, but it requires work to make it work well instead of sabotaging the system..
No the system as it exists does NOT work. As long as people believe that a slender, 115 lb. woman is physically equal to a 180 lb. man for purposes of fire suppression, combat, law enforcement , etc. as a female superhero as shown in the movies, then we are doomed to failure. Physical fitness requirements have been downsized in ALL of the previously named categories that in effect DEGRADES those needed services. Do you want to touch the third rail of intellectual capabilities?
What happened to the idea of EQUAL OPPORTUNITY that MLK expressed? That is intelligent and that is something anyone should be able to support! Equality of outcome is stupidity raised to the nth power!
Well, Thornton,
we’ll see if the Supreme court upholds the Constitution and outlaws Affirmative Racism.
However, the notion that the fact of race is unscientific and racist is absurd. Portable genetic test kits can and are used daily to determine the race of any subject person examined by samples as small as hair and skin cells, and they’re accurate. More extensive tests to determine genealogy are so accurate they can distinguish between different ethnicities and regions of ancestral origin in most cases.
Race is real and it’s not “racist” to acknowledge that truth. It’s scientific. Genes are real and they determine the physical characteristics of all higher life forms on Earth and also the overwhelming majority of lower life forms. People come in different races just like animals of the same genus come in different species. And animal species are FAR more varied and distantly related than people of different races are but animals of different species interbreed as well.
I know you don’t want to believe it but this is factual.
As factual as the Virgin Birth.
So you deny reality? Up is down and left is right?
Genes don’t lie but people do.
And Ayn Rand was a skank.
Affirmative action is institutionalized racism. Period. Full stop.
Diversity is very easy to define. It means anti-white. Anything diverse is the exclusion of white people.
Multiculturalism is anti-American. All cultures except Americanism.