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The Affirmative Action Ruling Exposes the Diversity Racket in Higher Education

The Affirmative Action Ruling Exposes the Diversity Racket in Higher Education

“affirmative action was never about the educational benefits from diversity”

The diversity narrative was just that. A narrative. And higher ed has used it as a crutch for years.

Josh Blackman writes at the Volokh Conspiracy blog at Reason:

Say Farewell To The “Diversity Benefits” Rationale For Affirmative Action

For nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell’s rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around “diversity.” Universities were forced to frame every decision they took in terms of using “diversity” as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall’s Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the “educational benefits” approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O’Connor.

Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter–though I agree with Justice Thomas that the precedent is all but overruled. Still, the “educational benefits” rationale seems to have been nullified. Harvard identifies several specific educational benefits it was pursuing:

Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.”

The Court easily found those rationales were not sufficient:

Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed?

Of course, the shortcomings of the “diversity rationale” were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with “brave” judges of “wisdom,” did not ask the hard questions. They blindly deferred to the universities.

Blackman goes on to explore the surprising lack of the “educational benefits” narrative in even the dissents.

It was to be expected that the majority would discard the “educational benefits” rationale. But I was surprised at how little that rationale featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase “educational benefits” appears only four times in Justice Sotomayor’s dissent, and zero times in Justice Jackson’s dissent. Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell “barely once,” while Justice Jackson “ignores Justice Powell altogether.”

Rather, the dissenters rely almost exclusively on Justice Marshall’s dissent. Under well-settled law, the universities have not invoked any sort of “remedial” interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that “there is a reason” the dissenters have to rely on Justice Marshall’s dissent, because they “surely cannot claim the mantle of stare decisis.”

Read the whole thing.


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SeymourButz | July 9, 2023 at 2:19 pm

I’m starting to wonder if there are any benefits of diversity period.

    The Gentle Grizzly in reply to SeymourButz. | July 9, 2023 at 2:36 pm

    The good parts include wonderful restaurants and festivals of various kinds. One meets some interesting people.

    It is when diversity is compelled it goes sideways.

      JohnSmith100 in reply to The Gentle Grizzly. | July 9, 2023 at 3:34 pm

      College should be about the best and brightest, Affirmative action was supposed to identify blacks with merit, give them a hand up, instead it was perverted to promote meritless blacks ahead of other races who had much more merit. As a practical matter this has harmed all aspects of our society, greatly lowering our competiveness. My experience as an employer, granted from about 20 years ago, was that 8-9 out of 10 black employees were sub par. I wish that was not the case.

    Jvj1975 in reply to SeymourButz. | July 9, 2023 at 3:12 pm

    1. WWII US Marine Code Talkers

    2a. Musicals on stage and screen since 1800s
    2b. Rock n Roll since 1950s.

    3. NFL , NBA, MLB

      chrisboltssr in reply to Jvj1975. | July 9, 2023 at 7:16 pm

      None of that is because of diversity. In fact, I would argue that at least 2 and 3 they have become less diverse.

    chrisboltssr in reply to SeymourButz. | July 9, 2023 at 7:15 pm

    You have to ask yourself: After all the push for diversity in this country has the country gotten better or worse?

    The question answers itself.

    randian in reply to SeymourButz. | July 9, 2023 at 10:16 pm

    There is, apparently, a black perspective on mathematics, physics, and engineering that the world, especially whites, would be deprived of without diversity. I don’t know what it is, being a benighted conservative, but I’m assured it exists.

The ‘diverse outlooks’ thing is funny. You know every one of them is left-wing on every issue.

Juris Doctor | July 9, 2023 at 3:18 pm

Clarence Thomas’s questioning was brilliant. He was baiting the universities to discuss diversity of view points or diversity of ideas. Far left universities are not receptive to that kind of diversity.

E Howard Hunt | July 9, 2023 at 4:38 pm

If you look at Harvard’s admission data it is clear that whites have not been hurt by affirmative action as regards representation based on merit. All of the black and Hispanic non-meritocratic admission was at the expense of Asians.

    randian in reply to E Howard Hunt. | July 9, 2023 at 10:20 pm

    Asians are a much smaller voting block, and are reliable Democrats. No matter how outraged they are at what Harvard is doing they won’t meaningfully pivot away from the Democrats, just like it doesn’t matter how much Democrats suppress the incomes and employment of blacks by importing hispanics. Blacks will continue to vote 95% Democrat.

      Tel in reply to randian. | July 11, 2023 at 10:43 pm

      Depends on the Asian community. The Vietnamese in Orange County, CA tend more Republican. They remember Saigon and why they had to get the hell out. Like pre-Castro Cubans in Florida.

BierceAmbrose | July 10, 2023 at 8:46 pm

Every program is a patronage system, to secure votes the purveyors won’t otherwise get. What’s interesting is we’re seeing ever more voting against.

Part of the 2016 election surprise was ignored interest groups noticing that they were interest groups and acting that way. More than voting “for” for patronage, they voted “against” for self preservation.

If you wanna win their votes, maybe don’t tell people you’re gonna destroy the only non-subsistance industry they’ve ever known. They might vote against you. Especiallydon’t cackle after you say that.

“How is a court to know whether leaders have been adequately “train[ed]””

Considering what we have in office now, that’s an unintentionally hilarious statement.