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Justice Kennedy Adds to the Confusion on Affirmative Action

Aug 6, 2016 by

by James Windham –

Last month, I commented briefly on Fisher v. University of Texas, the long-running affirmative action in college admissions case, on which the Supreme Court ruled 4-3 in favor of the University, supporting its so-called “holistic” criteria review of applicants that might use race as a factor under strict scrutiny in the interest of diversity in the student body.  Because of the implications of the decision, I want to expand my commentary on the case and return to some comments on it that I have previously made over the past couple of decades.

This is a horrible decision.  It is made even more so by the fact that Justice Anthony Kennedy, who wrote the majority opinion, in effect reversed himself on the issue from his statement in the first appearance of Fisher before the Court in 2013, in which he wrote “judicial review must begin from the position that any official action that treats a person differently on account of his race or ethnic origin is inherently suspect”.  But in this case, he was almost totally deferential to the university’s judgment, with scant evidence that there were any strict scrutiny criteria in place.  Kennedy is obviously struggling with his convictions, particularly now with Antonin Scalia not around to prop him up.  What a tragedy.

After the Adarand and Hopwood Court decisions of the mid-1990’s and the passage of Proposition 209 in California, many of us were encouraged that our country was finally on a path toward the realization of the ideals embodied in the equal protection clause of the 14th Amendment and Dr. Martin Luther King’s “I Have a Dream” speech.  Alas, the vested interests of race-based preferences in hiring, college admissions, and contracting have mounted aggressive counterattacks that have taken several forms, in and outside the judicial process.

These efforts are particularly egregious in our elite institutions of higher education, which ostensibly have as their mission the pursuit of truth but which have practiced a considerable degree of intellectual dishonesty in fighting to preserve race-based admissions preferences.  As a result, we get the various “X% rules” that guarantee admission to a certain top percentage of each high school graduating class, proposals to replace standardized tests such as the SAT with more “holistic” admissions criteria, and the promotion of “diversity” in admissions as a compelling public interest.  Of course, diversity is defined for this purpose in terms of color or ethnicity, not thought or ideas or political philosophy, and, at least in the top business schools, is said to be driven by the demands of the globalized market and prospective corporate employers.  Most of these companies have been shaken down by the affirmative action establishment, and they seem to lack the moral authority to insist on higher expectations from minority students.  Shelby Steele of the Hoover Institution has consistently made the case that this is the reason that the white leadership of American institutions keeps trying to engineer results rather than demanding higher achievement.  It’s as though they feel they must seek moral authority by proving a negative — that they are not racist.  The problem for Steele is that this moral authority comes at the expense of minority development.

The corruption this promotes is pervasive.  We are led to believe that diversity initiatives have nothing to do with racial quotas and that they are crucial to learning, academic excellence, and the pursuit of truth.  In fact, there is ample evidence that many in higher education leadership believe that achieving a certain racial mix on campus is more important than maintaining educational standards.  In other words, access trumps excellence, even when it has been clearly shown that the “mismatches” in admissions often result in frustration and failure for minority students.

There are a number of strategies that we should emphasize in lieu of this deeply flawed approach.  First, it is clear that enrollment parity for economically and socially disadvantaged students will come only when these students are much better prepared for higher education by our public school system.  Thankfully, some of our leading universities are beginning to pay more attention to this seamless “K-16” nature of education and are developing initiatives to address the college preparation problem.  This is a much better use of their talent and resources than worshipping at the altar of engineered diversity.   More importantly, however, we need to transform the entire delivery system for public education through extrinsic reforms that include comprehensive school choice for every child and the overhaul of teacher preparation and certification that will loosen the monopoly of the colleges of education.

All the easy education reform has been accomplished, the more difficult and challenging elements are ahead.  But when less than one-third of our high school graduates are postsecondary (college and career) ready, one-half of them must take remedial courses to enter community college, and almost one-half of urban third graders cannot read at grade level, the lucky few who fit into the “diversity” quotas are insignificant in number compared to those condemned to permanent second class status by failing public schools.  The continuation of affirmative action in college admissions is not a cure for this problem.

Source: Justice Kennedy Adds to the Confusion on Affirmative Action

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