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July 2, 2013

Diversity After Fisher

SCOTUS.jpgBy Peter Wood

The Sunday New York Times this week included one of those impressive (and expensive) full-page ads that appear when an interest group wants to make a Big Statement.  The new ad, sponsored by the Washington Higher Education Secretariat (WHES), is addressed to all of us. It declares in all-caps, "DIVERSITY IN HIGHER EDUCATION REMAINS AN ESSENTIAL NATIONAL PRIORITY." 

The WHES is composed of 37 organizations which have clumped together like coral polyps to create a reef of establishment opinion. Like every coral reef, the WHES consists mostly of dead material.  In this case, it is built on the skeletons of dead ideas.  And like every coral reef, it provides a luxurious home for the wide variety of creatures living in its interstices. 

Credulous Diversity

"Diversity," in this context refers simply to classifying students by race and ethnicity and showering "preferences" on those who fall (or who are assigned) into the right groups.  The idea, launched in Justice Powell's side comments in the 1978 case Bakke v. Regents of the University of California, is that everyone's education is enhanced by exposure to diverse ideas and perspectives, and racial preferences in college admissions are an excellent way to achieve that kind of intellectual diversity.

"Diversity" in this sense is as dead an idea as phrenology--at least when it comes to intellectual substance and supporting evidence.  But diversity has, reef-like, been institutionalized, and is now home to countless diversity deans, identity-group deanlets, diversity admissions specialists, diversity lawyers, teachers of diversophy, and--high up on the food chain, like a barracuda, diversiphile college presidents whose whole career has consisted of demonstrating a relentless appetite for still more diversity. 

Fissures

Last week, the Supreme Court handed down its anemic decision in Fisher v. Texas, the case that pitted a young white student, Abigail Fisher, against the diversity establishment after she was narrowly denied admission to the University of Texas because of her race.  She contended she would have been admitted but for the preferences granted to other students who were academically less qualified but who enjoyed preferences because they are non-white.  The Court decided, 7-1, that the lower court hadn't sufficiently considered whether the University of Texas had explored more race-neutral ways to achieve "diversity" before resorting to outright racial preferences.

The Supreme Court could have chosen this occasion to reconsider whether the pursuit of racial diversity is a "compelling government interest" of such importance as to override the principle that the law should shun racial classifications.  But the Court pushed that matter aside to focus on the issue of whether the University had "narrowly tailored" its admissions policies.  Together, "compelling interest" and "narrow tailoring" make up the "strict scrutiny standard" the Court supposedly applies to the use of race in public policies. 

Since Justice O'Connor's opinion in the 2003 case, Grutter v. Bollinger, this "strict scrutiny standard" has been pretty hollow.  That's because O'Connor granted "deference" to the universities to decide for themselves whether the pursuit of "diversity" is a compelling public interest and, if so, how to go about achieving it.  The Grutter decision and its companion, Gratz v. Bollinger, closed the door to outright quotas and "points" for being a member of a preferred minority group, but the "deference" was so broad as to allow the diversity establishment to get on with its business pretty much unhindered.

An optimistic reading of the new Fisher decision is that it curtails some of that deference.  Colleges and universities are now told that, if challenged in court by someone like Abigail Fisher, they will have to produce actual evidence that their admissions procedures are "narrowly tailored" to achieve diversity and are not just schemes to achieve a desirable racial balance. Will universities down the road be willing to accept preposterous just-so stories about "holistic review" and "critical masses" as meeting the criterion of narrow-tailoring?  They might, in which case the Court's decision in Fisher will prove empty.

Anyone living in the real world knows that those admissions policies are nothing but racial balancing schemes. The coral reef of "diversity" happens to be where, under force of legal circumstances, they are forced to play out this game, but achieving a vibrant intellectual community on campus in which diverse ideas are welcome is the last thing on the minds of campus administrators.  If they were concerned about actual viewpoint diversity, we would have campuses in which conservative ideas are robustly represented, where gay marriage is debated and not just acclaimed, where doubts about racial preferences themselves could be openly expressed, where those who have reservations about the current "climate change" models could present their case, etc. 

Higher education is cemented into orthodoxies of its own devising that leave students ill-prepared for the actual diversity of views in the larger society.  These orthodoxies are pernicious in a number of ways, but let's stick with just one of them:  they breed in students contempt for those who depart from the "consensus" on any given topic.  The ideals of open-mindedness and tolerance are reduced to merely slogans.

What We Want vs. What WHES Wants

What does WHES want?  To protect this status quo, of course.   

The full-page New York Times advertisement celebrates the Court's decision not to use the Fisher case to overturn Grutter.  Or as WHES puts it, the decision "leaves intact the longstanding legal principle that the educational benefits of a widely diverse student body are a compelling governmental interest."  How "longstanding" that principle really is depends on how one traces its history.  WHES traces it to a 1957 opinion by Justice Frankfurter, which of course said nothing about "diversity" as we now know it or about racial preferences.  O'Connor's 2003 decision is "longstanding" in the life of a cricket but maybe not so longstanding in the life of the republic. 

I doubt that WHES would have troubled itself to place the ad if it were only an occasion to breathe a sigh of relief that the Court hadn't disturbed Grutter.  The rest of the ad extols the diversity doctrine itself in its well-established fictions.  It never mentions that what is at stake is the use of racial preferences in admissions.  Instead it plows on in the rhetoric that, "A diverse student body enables all students to have the transformational experience of interacting with their peers who have varied perspectives and come from different backgrounds." 

Again, varied perspectives and different backgrounds are precisely what American higher education strives hardest to suppress, at least when it comes to perspectives that touch on contentious social and intellectual issues.  But we understand the code words.  "Varied perspectives" in WHES-speak are the perspectives that supposedly flow directly from the possession of a particular racial or ethnic identity.  For WHES, exposure to these viewpoints is crucial to our "economic future, democracy, and global standing." 

The ad also conflates "the goals of equal opportunity and diversity in education."  In fact, these are divergent goals.  Equal opportunity cannot be achieved through a preference regime.  If "diversity" means racial preferences, such preferences flatly contradict the ideal of equal opportunity for all regardless of race.

WHES concludes with a promise: "We pledge to reinvigorate our work to ensure that all who enroll in higher education experience a rigorous, horizon-expanding, and intellectually challenging education."   That's a worthy-sounding goal but it lies in a very different direction from WHES's effort to shore up its coral reef.  The diversity doctrine has, disappointingly, survived its rendezvous with Fisher but it remains a destitute idea with no valid place in higher education. 

The sooner the Court gets around to realizing that, the better for our nation. That may, however, be a long time coming.  I don't have great confidence that the Fifth Circuit will, upon taking another look at Fisher, forego its old habits of "deference" to the University, or that other courts in future cases will summon their courage to doubt a university's claptrap rationale for racial preferences.

On the other hand, I'm glad to see that the higher education establishment is a bit apprehensive about the situation.  The New York Times advertisement demonstrates deep-pocketed funding and determination but it also reveals anxiety.  The signatories fully understand the stakes.  Americans overwhelmingly hate the preference regime that our colleges and courts have created.  When the public gets a chance to vote on the matter, it typically gives an emphatic "NO!" to preferences.  Even preference supporters these days often pivot to class-based rather than race-based preferences.  The louder the higher education establishment asserts that "DIVERSITY IN HIGHER EDUCATION REMAINS AN ESSENTIAL NATIONAL PRIORITY," the more we should wonder "Why?"  Asking that simple question will go a long way towards ending the preference regime.

Peter Wood is president of the National Association of Scholars.



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