In Fisher II, the Supreme Court Should Look at Reality, Not Pretense

Peter Wood

On December 9, the Supreme Court heard arguments on a crucial case dealing with racial preferences in college admissions, Fisher v. University of Texas.

Here is the issue: Can a university use racial preferences that favor students from certain groups, so as to reach “critical masses” of such students? The university contends that if it can’t do that, it will lose the claimed educational benefits that come from all students hearing “minority viewpoints.” (For more detail on the case history, see my summary.) 

Colleges and universities are mostly run by men and women who believe that, in light of America’s history of racial injustice and oppression, certain minority students should be given strong incentives to attend college and be admitted at a much lower standards of academic performance. Those officials face serious opposition from people who argue that racial preferences are patronizing and harmful to minority students, unfair to others, and are an impediment to overcoming racial division.  

That division of opinion is stark and the debate intense. Unfortunately, it finds no place within the imaginary world of Supreme Court jurisprudence on racial preferences in higher education, a world that is entirely taken up with the theory of “diversity.”  

The Court’s theory of diversity, first conjured by Justice Powell in his 1978 Bakke opinion, and given its current form by Justice O’Connor in her 2003 opinion in Grutter, treats racial preferences in college admissions as justified by the need to ensure a variety of viewpoints in the classroom. That is, racial preferences are not needed or justified to overcome a legacy of injustice or to right current wrongs (as college leaders think). Instead, they are supposedly needed to ensure that classrooms are enlivened by diverse opinions that won’t be heard unless people of diverse racial backgrounds sit in proximity.   

It would be ideal if the Court in Fisher would recognize that the University of Texas has been unable to show any legitimate academic justification for its preference regime. Its “educational benefits” claims are empty.

Crucially, the “critical masses” that UT asserts it needs are elusive. When the case was reargued, the university declined to translate them into numbers or percentages, or to offer any empirical evidence at all in their favor. As Judge Emilio Garza wrote in his dissent to the Fifth Circuit’s July 2014 decision approving the university’s racial preference policy, “the University’s attempted articulations of ‘critical mass’ before this court are subjective, circular, or tautological.”  

Judge Garza is correct. The very concept is risible. No “critical mass” of minority students in a calculus class makes learning calculus any easier for the preferred students or intellectually richer for the non-preferred ones. This applies to every rigorous college subject.

A chemistry class is not improved by having a “critical mass” of students defined by ethnicity. One thing that might improve it is having all the students meet a threshold of intellectual ability and prior preparation, but racial preferences work against that. In the theoretical and applied sciences, the “viewpoints” of students are irrelevant. 

When it comes to the softer subjects of the humanities and the social sciences, the situation is similar but less clear-cut. Many of those courses have been intellectually compromised by faculty members who use them as opinion forums, or worse, to inculcate political views. In those circumstances, the “critical mass” of preferred students may influence the tenor of the class in the direction of foregrounding social grievances at the expense of all other content. There is no reason to assume that such influence is for the better.

In January 2013, the National Association of Scholars published a study, Recasting History: Are Race, Class, and Gender Dominating American History? It focused on freshman history courses at the University of Texas at Austin and Texas A&M University, and examined in detail the 85 course sections in American history that met a Texas state requirement and the 46 faculty members who taught those courses in 2010-2011. The report is fine-grained, but the basic picture is that 78 percent of these UT courses were primarily focused on race, class, and gender.  

This is what happens when a university decides that its main business is to promote identity group solidarity and victim consciousness. Racial preferences work perfectly well if the goal is to foster coalitions based on grievance. They don’t work well if the goal is education.  

The Justices (and indeed all Americans) should recognize the emptiness of the pretense that “viewpoint diversity” has anything to do with the rough and tumble of identity group politics that is truly the driving force behind the University’s preference regime.  

Fisher returns to the Court just when colleges and universities are convulsed by protests centered on the idea that they are profoundly racist institutions. Since the resignation of the president of the University of Missouri in November, dozens of campuses have seen histrionic protests by students making extravagant claims about the complicity of their alma maters in racial oppression.  

This is where current developments enter the picture. 

The Court maintains that it is unaffected by the broader climate of opinion in society or the controversies of the hour, but that isn’t very convincing. The Court’s decisions in the two Affordable Care Act (Obamacare) cases, and the same-sex marriage case Obergefell v. Hodges(2015), testify to the degree to which it is influenced by what is going on outside the boundaries of the cases themselves and the relevant law.

A great many deans, provosts, and presidents have issued statements meant to appease the protesters by, in effect, agreeing with the allegations. Often these appeasing statements have been accompanied by promises to spend large sums to meet some of the protesters’ demands, such as increasing the number of students admitted with racial preferences, hiring more minority faculty members and administrators, and spending more on racially themed programs.

These concessions clearly do not fit with the Supreme Court’s diversity doctrine. They have no basis in “strict scrutiny” of ideas about how racial preferences should be deployed or why “diversity” is important in the first place. Both the protesters and the compliant college administrators speak the language of “social justice,” not the language of “enriching intellectual experience.” In truth, it has become glaringly apparent that demands for more “diversity” are antithetical to a true learning environment.

We are, unfortunately, in the midst of a generational moment of racial hysteria connected to a larger cultural shift—the cry-bully phenomenon—in which significant numbers of students are expressing their preference for the comforts of communal conformity over the challenges of listening to and weighing conflicting opinions. The “safe spaces” that students demand are safe for the expression of minority grievances and demands for social justice, and definitely not for criticism or debate of these views. 

On the surface, all of that would appear to be bad news for the “diversity” doctrine, which is premised on the importance in education of having many dissimilar opinions voiced. But since the doctrine is mostly a pretext for racial quotas without saying so, the Court might choose to stick with it, no matter the obvious and growing contradiction between the theory and its practical results.

At least we can hope that the Court finally calls a halt to the folly of racial preferences.

This article originally appeared in The John William Pope Center for Higher Education Policy on December 11, 2015. 

Image Credit: UpstateNYer, cropped.

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