Reprinted from the James G. Martin Center for Academic Renewal
To what extent can an electoral institution facilitate the decision to admit a particular ethnic group without discriminating against other groups at the same time? How can institutions balance external demands for fairness and group representation with their core goals of educating students adequately? How much influence should an organization have over other stakeholders (including the American public) in determining the desirability of a diverse student organization? The answers to this thorny question should be clear by the end of this year, with the impending Supreme Court ruling in the case of racial discrimination against Harvard University and the University of North Carolina (UNC).
On May 9, 2022, my group filed an amicus brief in support of the US Supreme Court plaintiff, Students for Fair Admission (SFFA). This is the third friend-of-the-court filing that we have submitted to our country’s highest judicial body to reconsider its earlier judgments and to clarify the legal parameters surrounding race-awareness in college admissions. Created brilliantly by our partner organization, the American Civil Rights Project (ACR Project), this latest document makes two arguments against the current precedent of race-preferential admission. Both positions apply when one verifies race-conscious decision-making in general.
1) Universities should not be both actors and directors
What emerges from previous Supreme Court decisions is a widely accepted judicial doctrine known as “rigorous scrutiny.” There are two elements to this doctrine: namely, “essential interest” and “narrow sewing”. A compulsory public interest in the use of race in policy-making must include the protection of national security, the redressal of substantially documented historical inequalities by the government, or the advancement of the educational benefits of a diverse student organization. Narrow sewing, meanwhile, means that an organization must prove that it has tried all possible non-racial alternatives and that a racial preference is absolutely necessary to meet one or more of the three compelling interests.
In fact, the precedent of rigorous scrutiny has been transformed into an inconsistent and unreasonably controversial criterion, mainly because of the Supreme Court’s ruling on affirmative action.Wrinkle v. Bollinger, Fisher EyeAnd Fisher 2) Has consistently empowered universities to justify racial discrimination. In other words, courts have pushed universities and colleges to issue academic judgments on whether there is a guarantee of positive action based on race. How can a discriminating judge and jury be both an actor and a director when it comes to an admissions instance that requires an exception to clearly define our constitutional principle of equal protection under the law?
In reality, allowing a discriminating party to declare its own innocence creates a legal excuse for rigorous scrutiny for unconstitutional racial preferences, a problem that can only be resolved by the Supreme Court. More importantly, the rigorous screening feedback loop without any independent oversight has given rise to a larger social ills at Harvard and even outside the UNC: the mushrooming of a diverse ecosystem has been erroneously predicted that ethnic diversity is a challenging educational product. Nowadays, one can hardly find a U.S.-based higher education entity that is not proud of the core values of diversity, equity and inclusion (DEI) in all aspects of its operations. California Community College, for example, is adopting a regulatory proposal to make minimum DEI standards mandatory for our country’s higher education system, employee evaluation and term-review. The University of Northern Arizona now seeks to meet two of its students’ “diversity requirements” for graduation. Many similar developments have occurred elsewhere and have transcended the field of student admissions.
2) How about being late to the American people?
My colleague, Gayle Harriott, a professor of law, commented on the urgent need for the Supreme Court to come back from the backwardness of universities and to consider public opinion instead. “If the court were to reject someone, it should have been the American people, who have repeatedly made it clear that they do not support racially motivated admissions,” Harriet said.
Professor Harriott is absolutely right about “a stable, broad-based, national consensus.” For Equal protection and Against Ethnic preferences, as our Amicus briefly explains in detail. The best evidence of this consensus is found in parallel tracks in the history of opinion polls and statewide voting. In particular, as indicated by almost every major opinion poll on the subject, the growing majority of Americans across the political corridor and not all races support racial preferences. Additionally, voters in two of America’s leading progressive states, Washington and California, have rejected the ballot system, which would have lifted restrictions on racist choices. Public support for equal protection was most pronounced in deep-blue California, where more than 9.65 million people (57.2 percent of voters) voted in favor of making racial discrimination illegal in 2020.
On the other hand, again and again, those who consistently support race-consciousness are a small, self-interested consortium. The group consists of like-minded academic colleagues, government agencies and associations investing in diversity.
Let’s play the devil’s advocate here. Tokeville warned of “dictatorship of public opinion” and “oppression of the majority” as potential obstacles to liberal democracy. Supreme Court justices are expected to make decisions on a policy basis without compromising socio-political consensus. However, our amicus briefly draws a distinction between public opinion For Racial Discrimination and Opinion Against It is we who argue that, in the next example, social consensus is not the fashion of the moment which should be defended against the judgment of the judiciary. Rather, it is consistent with the letter and spirit of the 14th Amendment to the Constitution and should be heard by the Supreme Court.
Dan Mornoff, executive director of the ACR project, elaborated:
The debate over whether a stable consensus of the people is really “necessary” for the interests served by the race-based admission policy must be brought to an end. Whereas, for decades, the American super majority (including the majority surveyed from all races, ethnicities, and parties) has consistently rejected race-based admissions in virtually every credible vote. Bigger, Up to and including the Pew Research Center last month, what is the counter-argument? If Americans of all stripes continue to refuse race-based admissions, to whom are they “compulsory?”
An insatiable desire for racial diversity does not guarantee purposeful results. Clearly, proponents of enforced racial diversity represent a partisan sentiment in direct conflict with the rule of law. Instead of satisfying a compelling public interest, their diversified version has legitimized the multi-billion-dollar, largely unregulated industry. Collectively, industry players run both government funds and private funds toward university bureaucrats, market consultants, nonprofits, and accreditation agencies to perpetuate the misconception that racial proportionality is a universal good with basic educational benefits. Ironically, as with the long-term failure of race-based positive action, the insatiable desire for racial diversity does not guarantee the desired outcome.
According to a recent survey conducted by the University of Wisconsin-Madison, “marginal student groups” still do not feel “welcome, safe and respected” even though the campus has spent millions of dollars on diversification initiatives. In fact, the most basic problem with DEI is rooted: the pleasurable-sounding concept often signals shallow, cosmetic diversity, generous equal results, and exclusion of dissent (even against punishment).
Given the principle of equality and the prevailing demands of the American people, the Supreme Court should stop experimental withdrawal from equal protection under the law.