This Isn t the End of Affirmative Action Paul Moreno

Racial preference programs proliferated in the 1970s. Higher education admissions preferences were upheld under the diverse student body rationale in the 1978 case Regents of the University of California v. Bakke. Flat-out racial quotas were unacceptable, but colleges could take race into account as one factor among many in a holistic admissions review. Discriminate, the Court said, but don t be too overt about it. Use winks and nods, as the late Justice Ruth Bader Ginsburg put it. The Court largely reaffirmed Bakke in the 2003 University of Michigan cases the cases that it just repudiated.

But the Court will not likely touch affirmative action under the contracting program and Civil Rights Act that emerged in the 1960s. A majority, for example, is unlikely to hold that the disparate impact standard violates the Fourteenth Amendment. Nor will it consider other areas where social engineering to achieve proportionate racial outcomes has taken hold. In the 1970s, the federal government and the states adopted set-aside programs, where a certain amount of government spending must go to minority groups (which have expanded to include women, homosexuals, and others today). The disparate impact definition of discrimination has been extended to housing discrimination cases. The Voting Rights Act of 1965 has been turned from protecting the right to vote to maximizing the number of minority elected officials a racial group entitlement to offices, as the late Justice Antonin Scalia put it. The Court reaffirmed this max-blacks requirement in the Alabama voting rights case two weeks ago.

This term s higher-education cases are merely the tip of the iceberg. The preferential admission policies only matter at a small number of elite, selective colleges most colleges admit anyone who can pay, or cause to be paid, tuition. And since racial proportionalism ( diversity, equity, and inclusion ) has been a part of higher educational culture even longer than it s been part of corporate culture, administrators will find substitutes for diversity proxies for race, as they are called, or more winks and nods.

via lawliberty.org