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Race Discrimination in College Admissions Should Be Forbidden, Once and for All

Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice.  Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute.  And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.

Yesterday, the Court listened to argument for a second time in Fisher v. University of Texas. Far from “fixing” higher education in Bakke, the Court has generated nearly 40 years of litigation over affirmative action.  Two states figuring prominently in that legacy of litigation—California and Michigan—have enacted laws prohibiting the use of racial criteria in college admissions.  This is ironic because UT relies on the Grutter v. Bollinger (2003) decision—involving the University of Michigan—to justify its use of racial preferences in admissions.  Voters in Michigan effectively overruled Grutter in a 2006 referendum that was upheld by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action (2014).

At UT, the higher education bureaucrats have forfeited their credibility when it comes to the “need” for diversity on campus.  During the interval between the Fifth Circuit’s decision in Hopwood v. Texas (1996) and Grutter, UT was forced to abandon its use of explicit racial preferences in admissions.  To maintain demographic diversity in the student body, the Texas state legislature adopted the so-called Top Ten Percent Law, which granted automatic admission to the top 10% graduates of all high schools in Texas.  This created a diverse student body at UT, but when the Supreme Court disapproved of Hopwood (which had banned the use of race altogether) in Grutter, UT immediately resorted to a race-conscious “holistic” process to supplement the Top Ten Percent Law.  Abigail Fisher, a white applicant who was denied admission at UT in favor of less qualified minorities, sued to challenge the use of racial preferences.

UT defended its “holistic” admissions process, all the way to the Supreme Court, by claiming that it was carefully crafted, diligently administered, and rigorously reviewed.  Further complicating matters, though, for the credibility of the state’s flagship university when it came to admissions was the discovery that UT President Bill Powers was routinely interfering with (and even overruling) the admissions office to ensure the acceptance of unqualified applicants who happened to be friends or family of influential donors or legislators.  When the scope of Powers’ cronyism was uncovered, a scandal ensued and he was forced to resign.  The Kroll Report concluded that Powers and his chief of staff had “misled” a previous inquiry and “failed to speak with the candor and forthrightness expected of people in their respective positions of trust and leadership.” In other words, they lied.

Texas and other states that have not banned racial preferences in college admissions deal with the consequences of Bakke and Grutter:  Higher education administrators operating an opaque admissions process that dishonestly strives for racial and ethnic quotas while claiming not to; systematic discrimination against highly-qualified Asian applicants who would be “overrepresented” in a purely meritocratic process; and the creation of disgruntled populations of minority students who, because of academic “mismatch,” become frustrated and resentful toward the very colleges and universities they are attending due to well-intentioned preferences.

The results of the nearly 40 year experiment with affirmative action in higher education are clear—it is a failure.  The Supreme Court in Fisher II should overrule Grutter and embrace the principle of a color-blind Constitution.  Race discrimination in public college admissions is wrong and should be forbidden, once and for all.

Reader Discussion

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on December 10, 2015 at 12:31:16 pm

Brown v. Board of Education, 1954.

Here we are, patriots, taxpayers, and parents, 2015, fully 61 years later. Three-score and one year later, and millions of pupils and students are being transported by school bus, without any seatbelts, wasting millions of gallons of fuel, employing tens of thousands of bus drivers, being required to stand out in the street on the corner in pitch black darkness for a bus that we hope will arrive before the child abductors, rapists, and white slavers do, in order to be taken to a school in or out of their neighborhood where integration is being forced upon all agreed or disagreed.

Anyone know how many miles of driving, how much toxic AlGore-cursed emissions, how many gallons of fuel, how many lost study and library hours from our children all of this costs? I love Thurgood Marshall, and respect his legacy and courage, but school busing is not what Brown v. Board was about nor its recommended remedy.

School busing is the invention of bureaucrat education government employees in order to make hay, profits, and build empires for themselves, not to mention get kickbacks from bus operating enterprises, mechanics, and fuel suppliers, in order to benefit from an otherwise wise S.Ct holding.

Sixty-one years! How long will this go on? Will it only end when intermarriage makes it impossible for anyone to identify any one else's race? No: As long as we have Identity Politics, let Government judge people by race, categorize people into races, and deny people their dignity as individuals the insanity will continue. Ironically, the racial composition of most all communities has become totally different than it was when this cockamamie idea was first cooked up. So the bus routes are bogus today.

Take your kids out of Government Schools. They are only out to dumb down the populace so they are easily-managed workers and massively-hypnotized consumers. Education in entrepreneurship, business management, art, poetry, literature, fine art, creativity, and critical thinking are forbidden. It is pure vocational training for mass-quantity consuming workers.

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terry seale
on December 10, 2015 at 12:43:02 pm

61 years of -- what? What policy are you objecting to, and where is it being implemented?

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nobody.really
on December 10, 2015 at 12:45:28 pm

Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result.

What is the difference between “manages to get in front of the parade of public opinion” and “forces unruly voters to accept a particular end result”? If I had to guess, I’d surmise that Pulliam forthrightly opposed one decision, while he doesn’t oppose (or is unwilling to say he opposes) the other. But he fails to articulate any principle for distinguishing between these types of decisions.

At UT, the higher education bureaucrats have forfeited their credibility when it comes to the “need” for diversity on campus….

UT defended its “holistic” admissions process, all the way to the Supreme Court, by claiming that it was carefully crafted, diligently administered, and rigorously reviewed. Further complicating matters, though, for the credibility of the state’s flagship university when it came to admissions was the discovery that UT President Bill Powers was routinely interfering with (and even overruling) the admissions office to ensure the acceptance of unqualified applicants who happened to be friends or family of influential donors or legislators…. In other words, they lied.

And the conclusion Pulliam draws from this is that the deck is stacked unduly in favor of black applicants because the UT President had was using undue influence on behalf of the well-connected?

Wouldn’t the better conclusion be that the premise of Pulliam’s argument – the idea that Affirmative Action is a blight on an otherwise functioning meritocracy – IS A MYTH? The college admissions process has always been driven by various considerations that are wholly unrelated to academic merit. Affirmative Action was created to offset the problems with meritocracy – precisely the types of problems that Pulliam cites as a basis to do away with Affirmative Action. Pulliam has merely chosen to make a fetish of racial considerations to the exclusion of all the others.

Ok, I’m being unfair. Arguably the law makes a fetish of racial considerations, at least as far as government actions are concerned. (And I’m surprised that admissions offices have had such difficulty creating proxies for racial variables. This seems like a conceptual problem that skillful people should be able to evade rather than confront. Discretion being the better part of valor, and all that….)

That said, I’ll take one last exception to this post: The title says, “Race Discrimination in College Admissions Should Be Forbidden, Once and for All.” For ALL? As in, for private schools, too? Perhaps the feds might attach conditions to student loans or tax-exempt status (though I’ve previously expressed reservations about policy bundling), but the feds generally steer clear of trying to control the membership of private associations. I’m not persuaded that we should change that policy.

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nobody.really
on December 10, 2015 at 13:50:13 pm

The 14th Amendment constrains only the government. The post deals with state-funded schools. I didn't write the title. Private schools can do as they please.

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Mark Pulliam
on December 10, 2015 at 14:03:32 pm

"(And I’m surprised that admissions offices have had such difficulty creating proxies for racial variables. This seems like a conceptual problem that skillful people should be able to evade rather than confront. Discretion being the better part of valor, and all that….) "

Isn't that the point of the case? The 8educrats* have been attempting to do just that; apparently, they have been unable to do so.
As an example, take the Texas "top Ten Percent" formulation. On its face, it appears to be "race neutral." However, when one probes into the practical realities of this policy / process, one finds that such a "top-ten" system, whereby the top of ALL individual schools are to be admitted, we find that 1) the Texas Legislature had data to suggest that racial quotas WOULD be effectively maintained via this policy because 2) as each school would provide its top ten AND this would include schools from poorly performing districts (primarily, one assumes in minority districts) a certain racial balance would be expected.
a) It is clear that, for a number of reasons including Teachers Union rules, that schools in many inner cities under-perform and their students under-achieve.
b) As a consequence, many in these districts "top-ten" will not perform as well as the "top-ten'ers" from more effective districts. I do not blame the students - rather I would look at the districts themselves and their Teachers Unions.
c) In any event, many of these students selected for admission from under-performing districts will in fact displace other top-ten students who are better equipped academically to succeed in college.

Consider, if, as when I was a youngster, admission was limited to the top "percenters" across all high schools in the state. Results could conceivable vary. Yes, I suspect as the Court would do as it has done in the past condemn such policies as being only facially race-neutral. My response is that "life is a series of disparate impacts"; one ought to do what one can, within the law, to overcome such impacts without causing adverse consequences for a third party. I guess in your terminology, you would call these adverse externalities and as I recall you are no friend of externalities.
Me neither!!!!

It is a shame that this is so. However, that, in and of itself, is not sufficient cause to visit the sins of the father (grandfathers,more likely) upon the children.

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gabe
on December 10, 2015 at 14:19:53 pm

As can professional sports leagues (and sports unions) but NOT Labor unions - so what is the 14th Amendments dividing line between public and private action / spheres.
Anyone know - or is it a question of scrutiny, super scrutiny or .Lo and Behold, Super Duper decoder ring scrutiny?????

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gabe
on December 10, 2015 at 22:12:37 pm

The underlying problem in these kinds of “cases,” which share the common thread of a (“compelling,” preeminent, determinative, principal, etc., etc, . . . ) interest of (The State, the university, the educational system, the public, the county, the city, etc., etc. . . .) is the false premise of the identity of the true claimant(s) of the interest.

At UT, it is not the interest *of* the University. It is the interests of humans within the University’s hierarchical structure and operations that are in play. Those interests include the interlock with the interests of the political structure of the legislature and executive office.

That interest is in power. It is the power to have something to “trade” in the places of social and political exchanges. That power is so tenuous that its exercise must be cloaked (if it can not be hidden).

It has been reported that Chief Justice John Roberts asked Gregory Garre, the lawyer representing UT, how the university measures “whether the plan is working.” His response:

“We looked . . . to student body enrollment. We do look to classroom diversity. We look at feedback from students; from faculty—after all, this is **an academic judgment,** as the Court said in the [2003] Fisher case, and certainly said in the Grutter and the Bakke case[s]—we look to the racial climate, including incidents.”
(**added)

It is the power attributed to “academic judgement” that is the true issue here. In other cases we should look for where the questions or issues of power lie, when interests are reified.

It bears repeating – only people have interests.

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R Richard Schweizter
on January 12, 2016 at 17:41:52 pm

Why do we always blame the school and the teachers for the poor performance of students? I am the first to agree that the schools and teachers may very well be deplorable, but the fact remains that education is the responsibility of the family and the student. Here we are on a site that claims to support not just the right, but also the duty, of self determination and yet we still pretend that the poor educational outcomes are solely the fault of poor schools and teachers. The factual truth is that education is utterly disdained by many in these poor communities. Neither the children nor the parent(s) read anything. They speak pidgin English. They can't communicate in writing using even basic spelling and grammar. That's the truth. These are the facts. It may not make them less valuable as human beings, but it sure the hell makes them less valuable as employees. We don't need farm hands to labor from sun up to sun down. We need people who can read and write and learn how things work.

Once again we see that PC trumps reality. We don't want to mention the unpleasant truth because it's easier to see the poor as "victims" rather than perpetrators of their own predicament. Seriously, compare the young girl in Africa who walks 5 miles each way across dangerous territory to go to school and then stays up late into the night studying with a "disadvantaged" American who spends each afternoon of the school day playing video games and watching TV. Why don't we allow the poor the agency of being responsible for their own decisions? Are we not working from the belief that they are naturally and irredeemably inferior?

If you are poor then you must work very hard to get un-poor. That's a simple fact. If you refuse to do that, you are not a victim.

To say that the poor can't be responsible for themselves is the ultimate form of disenfranchisement. It is to relegate them to being less human, less capable, and less worthy than the non-poor. We aren't doing them a favor.

The vast majority of the human population of this planet ever to live have been poor. Yes the rich have advantages. So what else is new? The World isn't fair, it never was, and it never will be. Ask the slightly lame rabbit how fair the World is.

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Lemmings Folly
on January 15, 2016 at 12:10:18 pm

"The college admissions process has always been driven by various considerations that are wholly unrelated to academic merit."

True, but as long as a particular candidate has demonstrated an ability to perform at a particular academic level, and meet with success, what is the concern?

In regards to the quality of education, or the inequality of education, which is influenced by how property taxes are used to fund local schools, why would you not use a voucher system which would provide a better distribution of funding for all schools, private or public?

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Nancy
on May 23, 2019 at 07:43:16 am

[…] Since this takeover of college campuses began in earnest during the 1970s, the only significant resistance has come from the U.S. Supreme Court, which in a series of muddled decisions—beginning with Bakke […]

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Redlining in Reverse

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