“Affirmative action” will continue to be the routine course of business of college and university admissions for the foreseeable future. That’s the bottom line from the Supreme Court’s June decision in Fisher v. University of Texas.
By a 4-3 vote, the Court essentially approved the University of Texas’s “holistic” admissions as not violating the civil rights of white plaintiff Abigail Fisher. Justice Anthony Kennedy, as a Wall Street Journal editorial noted, “overturned himself.” That leaves five votes for racial quotas (counting Justice Elena Kagan, a lockstep liberal on this issue, who recused herself from this case) regardless of who eventually takes Justice Antonin Scalia’s seat.
When the same case came up three years ago, Justice Kennedy wrote that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” This time he wrote that a university is owed “considerable deference” when choosing students with “intangible qualities which are incapable of objective measurement but which make for greatness.”
If you’ve followed this issue at all, you know what all this mumbo jumbo means. It means that college and university admissions officers can discriminate by race, in favor of blacks and Hispanics and therefore against whites and Asians.
As they’ve been doing, aggressively for almost all of the half-century since the Civil Rights Act of 1964 prohibited such discrimination. Some institutions, it seems, are so high-minded and well intentioned that they can systematically and repeatedly disobey the Constitution and the law.
Backers of this form of racial discrimination argue that it does a lot of good for some people and not much harm to others. Applicants accepted because of their race will benefit. Applicants rejected because of their race by one selective school will probably be admitted to another one pretty much as good.
The facts may support the second proposition; Abigail Fisher will probably do all right in life. Unfortunately, they don’t support the first proposition. And what is fascinating is that this was foreseen, more than half a century ago, by another judge whose wise advice was rejected.
That was Justice Macklin Fleming (1912-2011), who graduated from Yale Law School in 1937 and was appointed to the California Court of Appeals in 1964 by Gov. Pat Brown. In an exchange of letters with Yale Law Dean Louis Pollak in June 1969 (the month of my graduation there) later printed in The Public Interest, he criticized Pollak’s policy of admitting “10 percent of each entering class without regard to qualification under regular standards.” Fleming called this what it was: racial quotas, which are “highly malignant, no matter how high-minded the purpose.” Moreover, positive quotas for one or more groups means negative quotas for others.
Fleming also argued that racial preferences won’t actually benefit the intended beneficiaries. “The present policy of admitting student on two bases and thereafter purporting to judge their performance on one basis is a highly explosive sociological experiment almost certain to judge their performance.”
The results of this sociological experiment at Yale and other selective schools are only too apparent to anyone reading Richard Sander and Stuart Taylor’s 2012 book Mismatch. Racial quota admissions inevitably, as Fleming foresaw, create a visible minority of students who tend to be less well prepared than average than their schoolmates. This reinforces rather than dispels stereotypes of group inferiority.
Quota admittees tend to drop out more often, tend to avoid college science and math, tend to flunk post-graduation bar and other professional tests. Admissions officers get to brag that they’ve admitted lots of blacks and Hispanics. But many of those admitted would have done better in the long run at a school where most students had similar levels of preparation.
It’s easy to imagine why such students cherish grievances and are on the alert for signs of racism, even from schoolmates of the least racist generation in American history. They know that administrators are lying when they say they don’t use racial quotas, and they resent the inevitable stamp of inferiority. You would too if you were in their shoes.
There will be, as Justice Fleming predicted, “demands for reduction of competition [and] reductions in standards of performance,” and some quota students “will seek personal satisfaction and public recognition by aggressive conduct.”
The results, 47 years after Justice Fleming’s letter, are Orwellian campus speech codes, “safe spaces” where students can avoid alleged offensive words, demands for increased racial quotas and preferences. Thanks to Justice Kennedy, you’re likely to see the same things 47 years from now.