“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” – Supreme Court Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School District No. 1 ruling (2007)
In 2007, Roberts issued those words, because a Seattle school district failed to show how its racial policies to achieve desegregation by mandating segregation were narrowly tailored enough to be Constitutional.
In Science Left Behind, I listed these policies as one of the ways that progressives in academia were slowly eroding science. By creating special, hidden racial classifications we were penalizing Asian students – a tiny minority at 5 percent of the population – to create a preferred minority of 26 percent of the population. I was confident the Supreme Court would knock this down because race-based quotas were never meant to be an institution, they were meant to overcome the problem of the ‘shackled man’ hypothesis, which postulates that someone held back isn’t going to have equal chances in a race just because the shackles are suddenly removed. Two generations is a long time to be penalizing some people to benefit others.
We aren’t creating better scientists by mandating minorities rather than letting the best people shine and it is silly to think that liberal academia is going to penalize minorities unless outside rules stop them. I was confident that because these laws were not narrowly tailored – they easily committed harm as much as help – the Supreme Court would rule for the woman who filed the suit because she was discriminated against using a hidden system for admission into the University of Texas at Austin.
“Narrowly tailored” should be a term University of Texas at Austin President Bill Powers keeps in mind as he cheers what he thinks is a victory for race-based college admissions with the U.S. Fifth Circuit Court of Appeals ruling, the same court that got chided by the Supreme Court for not understanding the issues last time they kicked this back to them. About the latest appellate decision in Fisher v. University of Texas at Austin Powers wrote, “We are very pleased with the Court’s ruling recognizing the constitutionality of the University’s admissions policy under the Supreme Court’s recent guidance.”
Credit: NY Times
That is some glass-half full legalese right there. What the majority actually said was “We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix.” Is that narrowly tailored enough the Supreme Court won’t throw out their ruling yet again? Hard to say. I am sure they are sick of this case but if they can suppress that and hear it again, they are going to rule and UT Austin will lose the case.
Why? For the reason the dissenting judge notes and what was a problem with a really wild Court of 40 years ago: Legally, the Constitution does not make racism okay even if it is intended to help. A policy mandating a certain percentage of white basketball players is not constitutional even if white guys can’t jump.
What works against the school is their argument that, using their secret sauce for admissions, only a few students (like Fisher) were affected. If it does not advance diversity, why have it? critics asked.
It’s legalistic pleading the alternative to say something is both meaningless and necessary. If you are not familiar with pleading the alternative, the old common law story is of a farmer accused of stealing a neighbor’s cow. He simultaneous pleaded that the he never took the cow, he gave the cow back and it was his in the first place.
The school is simultaneously arguing that minority students cannot get in on their own yet are important to the university. And yet they have no number for what diversity is. When pressed for its ratio of Latino and black students, they had no answer.
What was the first real judicial crack in those racial policies that have suddenly come back into play? Daniel Fisher at Forbes reminds us. They were common until 1967, when courts down laws against interracial marriage that used these same rationales. It seems strange that in 2014 Texas is using similar policies to pick and choose winners in its student body.