After Affirmative Action | City Journal
And what are the schools aiming to accomplish with these little tips ? We do not have some sort of racial target or a target for other diversity metrics, Park told Justice Neil Gorsuch regarding UNC. We say we value this diversity interest and we re going to look at each individual applicant on on that basis.
But, as Justice Samuel Alito interjected, how can a court tell if you ve reached your goal if you don t have a target? Our goal is to achieve the educational benefits of diversity, Park replied. And I understand that that is a a qualitative standard that is difficult to measure, but I do not believe that a standard merely being qualitative means that it s not susceptible to to rigorous review.
Chief Justice John Roberts asked Park when the school itself would know it had enough diversity that it could stop discriminating by race. Wouldn t it have to check the data to see if had a sufficient number of African-Americans, for instance? I think there will be some attention to numbers, Park admitted, but the feedback loop between our assessment of our campus environment and the admissions process, we will celebrate the day when we get to the point where we have reached the point where we do now with our minimal consideration of race.
Justice Ketanji Brown Jackson, the Court s latest addition, even raised the question of whether anyone had standing to challenge UNC s policies, given that the effect of race is so well-hidden among other factors in the admissions process. No one s automatically getting in because race is being used, she asserted.
Affirmative-action jurisprudence has been passed down through several generations of the Court s muddled-thinking swing voters, and the status quo requires obfuscation. If the schools could clearly describe what they were doing in regard to race, they d be breaking the law. Lewis F. Powell Jr. wrote the plurality opinion in 1978 s Regents of the University of California v. BakkeGrutter v. BollingerFisher v. University of Texas in 2016. More liberal justices would have straightforwardly allowed the use of racial preferences to help underrepresented and disadvantaged groups. More conservative justices would have simply barred consideration of race as a violation of the Constitution or civil rights law. But those ideological wings of the Court never had the votes.
What emerged instead was a bizarre system in which colleges may discriminate on the basis of race but are prohibited from being too frank about what they re doing. Schools can t give a specific number of bonus points to applicants from certain groups or use quotas to ensure a given racial balance. They can, however, use race as a plus factor in a holistic process meant to create diversity on campus. They have to make sure their use of race is narrowly tailored to meet their diversity goals in ways that race-neutral alternatives cannot. They have discretion to define those goals so long as they don t use actual numbers.
Justice O Connor made things all the more difficult when she wrote, in 2003, that The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Thus all the careful talk about not having any racial goals except the educational benefits of diversity, the claim that a college fought a racially fraught case to the Supreme Court to defend a minimal 1.2 percent of its admissions process, and the focus on the question of when preferences might no longer be needed. It s highly likely that this mess will soon be swept away in favor of a much stricter system, perhaps one in which no race-based plus factors are allowed at all.
And our Justices had to sit through *five hours* of this stuff. I realize their power is vast, but their salaries should also be doubled, at least for this year, just in simple fairness.
Maybe a better approach, though equally ridiculous, would be to defend, say, three percent on the grounds of the beauty of the number three: its greater than twoness, its mystifying primehood, its ineffable tripling of the ultimate unity that is one. Some would say, its similarity to the very Trinity which is the source of everything after all. Perfect number for a quota, or so one could argue.