May 21, 2015

PUT IT OUT OF ITS MISERY: Justice Kennedy’s Affirmative Action Do-Over.

The opportunity comes in a petition the Court will take up Thursday to hear another challenge to the University of Texas’s sneaky use of race in admissions in flagrant disregard of Justice Kennedy’s 7-1 majority opinion in Fisher v. University of Texas. That 2013 ruling held that the Fifth Circuit Court of Appeals erred in accepting the school’s use of race and sent the case back to subject the preferences to “strict scrutiny.”

That means schools must use precise techniques to accomplish their goals, proving in particular that they could not get a diverse campus without favoritism based on race. That’s a challenge at the University of Texas, which guarantees admission to the top tier of graduates from each of the state’s public high schools. In 2004 this brought an freshman class that was 21.4% African-American and Hispanic without using race.

That didn’t deter UT, which came up with a new rationale for preferences—the need for “diversity within diversity.” That is, the school said it wasn’t admitting enough minority students from majority-white school districts. These tend to be the children of affluent minority parents who live in the suburbs. The Fifth Circuit ruled that this racial tactic is fine even under “strict scrutiny.”

Truth be told, progressives/universities consider “diversity” to be inextricable from their mission. Even if the Supreme Court boldly declared the obvious–that race-based discrimination in admissions is racial discrimination, and hence, per se a violation of equal protection–I have serious doubts that universities would stop the practice.  As Justice Ruth Bader Ginsburg said in her dissent in Gratz v. Bollinger (2003):

The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment–and the networks and opportunities thereby opened to minority graduates–whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers’ recommendations may emphasize who a student is as much as what he or she has accomplished. If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.

Translated: We have to let universities continue to employ overt race-based admissions criteria because otherwise, the progressives/liberals who run them will just “resort to camouflage” and “winks, nods, and disguises” and do it anyway.  Not even a Supreme Court ruling telling them their behavior is unconstitutional will stop them, so don’t even bother.  They won’t care.  Yep.

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