“This ruling represents a drastic retreat in the social position of higher education”

“This ruling represents a drastic retreat in the social position of higher education”

Glenn Reynolds opines on how the SCOTUS ruling on Affirmative Action affects the role of diversity in higher education.

He writes at his Substack site:

Affirmative Action’s Demise and Higher Education

So the Supreme Court has ruled against Harvard and UNC, and in the process fatally wounded the “diversity” and “affirmative action” practices of most every higher education institution in America.

There’s a lot to say about that, but I want to mark one important point:  This ruling represents a drastic retreat in the social position of higher education.  Though the ruling itself is not so much the cause as a symptom.

Media accounts I’ve seen have tended to suggest that the Supreme Court had found that “diversity” is a compelling interest, sufficient to justify overriding the Constitution’s ban on racial discrimination.  For example, the Wall Street Journal’s report stated:  “For 45 years, the Supreme Court has recognized a limited exception to that rule for university admissions, one based on the schools’ academic freedom to assemble classes that support their educational mission. Diversity was a compelling interest, the court had found.”

But the Supreme Court did not itself find that diversity was a compelling interest.  Rather, it deferred to universities’ claims that diversity was a compelling interest.  A court defers to someone else when it says that it may have a different opinion on the matter itself but it will allow the opinion of the person or entity in question to control because of their expertise.  So, for example, under the now moribund doctrine of Chevrondeference, the Court would defer to an agency’s interpretation of the statute it administers, even if the Court would have interpreted the statute differently.

As Reynolds would say, read the whole thing.

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