Opinions

The Supreme Court recently held oral arguments on the affirmative action programs of Harvard and the University of North Carolina which, at least in the case of Harvard, where I'm familar with the data, has increased black and hispanic admissions while significantly limiting Asian admissions.  I expect the Court will overturn the diversity rationale first expressed by Justice Powell in the Bakke case (1978) and then made an explicit holding of the Court in the 2005 Grutter case, which provided cover for academic institutions to unleash the scourge of Division, Intolerance, and Exclusion (DIE).  While I believe that to be the correct constitutional conclusion, the reality is that the Court's ruling will not make a difference to the admission practices of the elite colleges and universities most committed to DIE.  There are quite a few potential ways to work around the Court's anticipated ruling in order to achieve the same goals which, in turn, will trigger more litigation.

Reading the transcript of the arguments led me to reread the opinions in Bakke and two aspects jumped out to me.

The first was Justice Powell's explanation of the purpose of "diversity", why it was important in the educational environment, and thus a permissible factor in admissions.  Excerpts:

The atmosphere of "speculation, experiment and creation"—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body. As the Court noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.

Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.

"The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. 

What is striking about Powell's rationale is that it appears no longer applicable in education, particularly in the elite colleges and universities.  His assumption is that ethnic and racial diversity, in and of itself, is an element in creating the "robust exchange of ideas".  Precisely the opposite is currently happening in academia.  What is important for students (and faculty) is complete conformity to a rigid set of ideas based upon race and gender being the sole lenses through which human experience and knowledge should be viewed.  Applicants, students, and faculty are increasingly being forced to pledge adherence to every element of the new creed, and dissent is immediately punished.  Classroom discussion, student group activities, outside speakers are all subject to a stifling conformity.

In light of the state of 21st century academia, Powell's concept of "diversity" has simply been nullified. On that basis alone, Grutter should be overturned.

The second thing that stood out was Justice Marshall's opinion.  Marshall's opinion is concerned solely with the situation of the Negro (his word) and the history of discrimination, pre- and post-Emancipation, experienced by that group.  After a lengthy recitation of that history, the Justice concludes;

 . . . these differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.

It is a view I have sympathy with, though the argument carries less power in 2022 than in 1978.  The unique aspects of the descendants of the freed slaves, and the discrimination they faced nationwide consistently until the post-Second World War era are at the heart of this.  In the July 2022 post Justice You Shall Pursue, I wrote about an interview with Charles Fain Lehman:

Two thoughts prompted by the interview:

The first is whether the Civil Rights Act of 1964 (CRA) was a mistake in not limiting its scope to the problem we were trying to remedy - the exclusion of black Americans from the full scope of legal rights of citizenship, as well as their de facto exclusion from large parts of American life.

During the debates over the 14th Amendment after the Civil War, an alternative was proposed simply stating:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

It was overwhelmingly defeated in the Senate and instead we ended up with the more complex and legally ambiguous version of the Amendment we have now, in which we are still debating what "due process of law", "privileges and immunities of citizens" and "equal protection" mean 150 years later. 

The one sentence version was doomed to defeat because, at the time, white Americans would not accept social equality for blacks, but in the long-term I think it would have served us much better.  Was the same true of the CRA, which I've always considered one of the two greatest federal legislative achievements of the 20th century (the other being the 1965 Voting Rights Act)?  It is something recent events have led me to question. (1)

(1)  My point is not whether other groups should have civil rights, but perhaps we would have been better served focusing on the unique circumstances of those involuntary brought to America, held in servitude, and their descendants.  Whatever other groups may have faced, the degree, extent, and duration of discrimination against these people is unparalleled in our history.

Ironically, the elite academic institution focus on diversity has led to a highly disproportionate percentage of black admissions to be of first and second generation African immigrants or biracial applicants.  In some cases, as with Barack Obama, applicants fall in both categories.  This has been noticed by some black organizations who have called for preferences for those descended from slaves, in order to correct this imbalance. 

Unfortunately, all this is a diversion from the real issue - the failure of K-12 education to develop a pipeline of students for the institutions of higher learning.  The result is that the elite institutions are competing against each other for a small pool of black applicants.  Expanding that pool should be the focus.  There are a lot of theories about why this has happened but, unless and until it is solved, this issue will remain with us in one form or another.

On a side note, until rereading the case, I had not realized that arguing for the University of California was Archibald Cox, of Harvard Law School, and the Special Prosecutor fired by President Nixon in the Saturday Night Massacre of October 1973.