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Affluent Christian Investor | August 20, 2017

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Will The Supreme Court Finally Scrutinize Racial Preferences?

(Photo: US Supreme Court Building)

(Photo: US Supreme Court Building)

On May 21, the Supreme Court held a conference to discuss whether or not to accept the Fisher case—again. At this time, I don’t know the decision, but I do know that a seemingly strange mixture of liberals and conservatives want the Court to take the appeal.

The case first came before the Court in 2013, where the justices reversed the Fifth Circuit’s ruling in favor of the racial preferences used by the University of Texas (UT) in its admissions. Justice Kennedy’s opinion stressed that the lower court had been far too deferential towards the university’s policy of reserving some places just for students in certain racial and ethnic groups.

Instead of applying “strict scrutiny” as courts must do when they consider public policies that categorize people by race, the Fifth Circuit had just breezily accepted the university’s claims, Justice Kennedy observed. So the case was remanded to that court for a rehearing.

The second hearing at the Fifth Circuit led to the same result—a decision in favor of UT. What’s more, the court’s approach was really no different. Again, a majority of the three-judge panel said that the university’s racial preferences were all right because school officials thought they were important.

But in dissent, Judge Emilio Garza wrote that the decision shouldn’t stand because it again failed to employ strict scrutiny. He wrote,

”Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal – essentially, its ends remain unknown.”

In my view, Judge Garza exposed the fatal weakness in the decision, but we will have to wait to see if at least four members of the Supreme Court agree and vote to rehear the case.

Critics of using racial preferences to give some students from “underrepresented” groups a boost into more prestigious colleges than they would otherwise be accepted into have tried to get both the courts and the general public thinking about the negative consequences of such policies. The proponents always say (without any convincing proof) that this policy is necessary to create “diversity” and in turn “diversity” brings about educational benefits for everyone. Even if that were true, we should also consider the drawbacks to using racial preferences before concluding that they advance some “compelling state interest.”

One of those drawbacks is the probability that many of the students admitted because of their ancestry are not academically matched to the college or university. A minority student might have a high school record that looks good, but still be very poorly prepared for the level of work expected of the students.

An example of mismatch is Kashawn Campbell, a black student who was admitted to UC-Berkeley. He was the star student at his high school, but so far behind the rest of the student body in reading and writing ability that he’d have flunked out except for an A in African-American studies. (I wrote about that case here.)

The mismatch problem has been widely discussed. Thomas Sowell has been decrying it for more than twenty years. More recently, Richard Sander and Stuart Taylor, Jr. published a careful examination of the trouble caused by “helping” students into schools where they’re apt to struggle entitled Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

Unfortunately, college officials won’t admit the possibility that their use of racial preferences might have harmful consequences. Evidently, they won’t even study it.

That is what one of the organizations opposed to racial preferences, the Center for Equal Opportunity, found when, following the Supreme Court’s Fisher ruling, it requested information from 22 public universities on how they considered the mismatch effect. As Roger Clegg and Joshua Thompson ruefully observe in this National Review piece,

“Astonishingly, half of those institutions responded that they had zero documents responsive to the request. The response at the remaining eleven universities was no better.”

You might conclude that university officials just don’t want to have any evidence that using racial preferences has drawbacks. That’s because this isn’t a carefully evaluated policy, but a feel-good social justice gesture that liberal academics can’t resist.

Looking at Fisher from a completely different perspective is Richard Kahlenberg, a senior fellow at the Century Foundation. In this recent Chronicle of HigherEducation piece, For the Sake of Working-Class Students, Give ‘Fisher’ Another Chance, he argues that the Court should take up the case again. His reasoning overlaps with Clegg’s somewhat.

A long-time advocate of trying to make top colleges and universities more diverse socioeconomically, Kahlenberg writes,

“If the court takes the case for review, as I think it should, that would be a big victory for poor and working-class students hoping to attend selective colleges and for those who believe racial considerations should not be a factor in deciding who gets ahead in society.”

Kahlenberg dislikes racial preferences because they overwhelmingly work to the benefit of students from “underrepresented” families who are not at all poor or disadvantaged. He’s right about that and that line of criticism finds some support among other liberals. Professor Sheryll Cashin, for example, laments that the way colleges employ racial preferences creates merely “optical diversity.” (I reviewed her book here.)

Because the great majority of “minority” students who receive preferences are from successful families, Kahlenberg doesn’t see how they really contribute much “diversity.” I don’t either. Aside from skin color, they’re hardly any different in their thinking and interests from the great mass of non-minority students.

Kahlenberg wants elite universities to drop racial preferences, but then replace them with socio-economic preferences so that more poor and working class students will be admitted to schools like UT.

Although such preferences don’t run into the constitutional problem that racial preferences do, we would still face the mismatch problem. If Kashawn Campbell’s parents had been poor white laborers, he would still have been mismatched at Berkeley.

The essential flaw in both preference policies is the mistaken belief that going to a prestige university necessarily means a superior education for the student—that it’s much better for the student to go to UT-Austin than one of the regional Texas state schools, much better to go to Yale than to Western Connecticut State. It simply isn’t true, however, that elite colleges necessarily mean an elite education. Nor is it true that going to a low-ranked school means that you won’t get a good education.

For a strong antidote to the notion that elite colleges are better, I suggest reading the recent book by New York Times columnist Frank Bruni, Where You Go Is Not Who You’ll Be.

Bruni’s big point is that education is up to the individual. A student who goes to a big-name school might just coast along and learn very little, while one who goes to a little-known school can hunt for the professors who really want to teach an eager student and benefit enormously. It’s often easier to find those motivated professors at small, teaching-oriented schools than at famous, “elite” universities where the faculty is largely immersed in research.

So here’s the best-case scenario. The Court takes Fisher again and rules that racial preferences are flatly unconstitutional. Afterward, the administrators of the nation’s colleges and universities stop trying to use admission preferences for social engineering. It’s a divisive policy that doesn’t accomplish anything.

 

Originally published on Forbes.com.

 

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