Supreme Court

Why Judges Can't Create Colorblind Campuses

The Supreme Court will never succeed in completely removing affirmative action from higher education.

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The Sixth Circuit Court's ruling two weeks ago throwing out Michigan's ban on racial preferences in college admissions would definitely deserve a place of honor in any top 10 list of judicial sophistries. But even if the Supreme Court reverses the ruling, universities will still find artful ways to promote their sham diversity. Instead of seeking more court intervention, defenders of color-blind campuses might serve their cause better by simply demanding more university transparency.

The Sixth Circuit has been trying to thwart Michigan's quest for race neutrality in government hiring and admissions ever since two lawsuits challenging the University of Michigan's admission practices made a stop in its chambers en route to the Supreme Court about a decade ago. The Supreme Court eventually outlawed the blatant racial double standard that the school's undergraduate program employed but allowed its law school's more individualized consideration of race. However, Michigan voters in 2006 amended the state constitution by a 58-42 margin barring all discrimination—big or small—by race, sex, and national origin.

However, the Sixth Circuit has now ruled that Michigan's ban against discrimination is itself discriminatory. It violates the 14th Amendment's guarantee of equal protection because it leaves minorities who want racial preferences in admissions no option but to mount a counter referendum. But students who want, say, their family connections or their socio-economic background considered can lobby the admissions committee or the university officials or the governing board. "The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the court averred.

But the same might be said, points out Roger Clegg of the Center for Equal Opportunity, of a Ku Klux Klan member who wants a whites-only admissions policy. Would the court have qualms about placing a "structural burden" on his rights?

Michigan's attorney general is appealing the ruling to the Supreme Court. If the court's conservative majority sides with him and rules against the University of Texas' race-based admissions policies in a separate case (to be decided any minute), opponents of affirmative action believe that a new age of color-blind campuses will dawn in the country.

But that is a triumph of hope over experience.

For starters, throwing out racial preferences that benefit minorities while leaving intact (as both Michigan and Texas do) alumni preferences that predominantly favor whites will not advance the cause of racial justice. Why? Because it will open minority seats to competition by whites, but not white seats to competition by minorities. Those who are serious about race neutrality have to scrap both simultaneously or lose moral credibility.

But if they don't like this reason, there are others.

Regardless of what the court decides, neither private nor public universities will give up racial preferences: private universities because the rulings won't apply to them—and public universities because they will ignore the rulings.

This is not a hunch. This is what they've always done.

The University of Texas, for example, pioneered the so-called 10 percent solution for the explicit purpose of getting around the 5th Circuit Court's ban on race. Under this solution, it automatically admits the top 10 percent of every school's graduating class, including inner-city schools, something that allows it to boost its minority numbers while pretending to be race-neutral.

The University of Michigan, meanwhile, has replaced race with its proxy, zip code. It filters applicants based on where they live, giving those who come from predominantly minority neighborhoods a leg up in admissions. The upshot is that, despite the ban, its minority numbers have barely budged, according to UCLA law professor Rick Sander, who obtained the university's admissions data through a Freedom of Information Request.

Forcing universities to give up such shenanigans and comply with court orders would require constant scrutiny and legal challenges by watchdog groups whom universities will easily outspend and outlawyer. And there are plenty of judges around eager to enable universities, as the Sixth Circuit demonstrates.

The best among bad options might be full disclosure laws requiring universities that receive federal funding to reveal what admission standards they use for which group—minorities, alumni, athletes, donors—along with their graduation rates. This will expose any admissions double standard whether toward minorities or rich white legacies and cause elite universities to risk their reputational appeal.

What's more, race-conscious admission policies produce an unusually high drop out rate among minorities by placing them in academic environments for which they are unprepared, Sander has found. Publicly available graduation rates will allow minority kids to pick colleges commensurate with their level of preparedness, preventing them from being set up for failure.

Universities are out of control, no doubt. But informed consumers might hem them in more effectively than court diktats.

A version of this column originally appeared in the Washington Examiner

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40 responses to “Why Judges Can't Create Colorblind Campuses

  1. Hmm, no comments yet, so I’ll get this party started.

    Racial standards are a legitmate libertarian compensation for the wrongs done to people of color throughout the last 500 years by racist white christian men.

    Also, gay marriage and abortion.

    And fried fucking chicken.

      1. Everyone. Probably best that I stop commenting now, before I lose more words.

    1. No, JJ. Chicken fried steak.

      1. I would defintely choose chicken fried steak with white gravy (made from bacon fat) over fried chicken any day, but I’m looking forward to lunch this week at this Amish place outside of town that makes the most killer fried chicken ever.

    2. You would think government imposing racial quotas on public institution would be sort of not libertarian.

      1. Check your privelege ability to detect sarcasm.

        1. I thought it was sarcastic until you included “gay marriage and abortion” as part of … legitimate “libertarian compensation”? I didn’t get the fried chicken reference.

          It’s a bit hard to detect sarcasm here, because there are some people post something outlandish and actually mean it.

          1. He didn’t say anything about smuggling illegal immigrants in food trucks that blow through red light camera intersections, so you can tell he’s not sincere.

  2. Some racism is for the greater good. Universities know this.

  3. Because it will open minority seats to competition by whites, but not white seats to competition by minorities.

    So these Universities have no “alumni of color”, all alumni marry their own kind and infertile alumni couples never adopt outside the White Race.

    Shikha sure is one self-hating Caucasian.

    1. Wow, you sure go out of your way to post stupid things sometimes.

    2. So what do you think the alumni of most prestigious universities that now have children of college age actually are doing? What do you think the graduating class of Harvard or Yale in the late 80s looked like racially? What do you think the honest percentage of their children being racially unlike them is? Of course there are mixed race children and adopted children of minorities, but the point is that alumni programs are still designed to favor the most privileged students anyways, who typically are from white families. This is no different from the ‘top 10%’ program in Texas, except at least that benefits even white but underprivileged students from bad areas.

    3. Shikha claims all alumni of UMich and UoT are white, and therefore all of their children accepted under legacy preferences are white so these admissions are guaranteed “white seats”.

      Both of these universities were fully integrated and practicing affirmative action admissions in the 1970s-1980s.
      The children of those alumni would be as,if not more,”diverse” as their parents.

      I’m not supporting legacy preference in admissions but their continued existence is a totally stupid argument for maintaining racial preferences in admissions, which is what Ms Dalmia is saying.

      1. Shikha claims all alumni of UMich and UoT are white

        A blatantly false claim on your part. Nowhere does she say that all their alumni are white, she says their “alumni preferences predominantly favor whites”.

        I’m not supporting legacy preference in admissions but their continued existence is a totally stupid argument for maintaining racial preferences in admissions, which is what Ms Dalmia is saying.

        She specifically is against maintaining racial preferences, and (yet again) nowhere says that alumni preferences are an argument for keeping the racial ones.

        You done burning those straw men SIV?

        1. “Whites” are the predominant pool of college applicants. See how that works?

          Because it will open minority seats to competition by whites, but not white seats to competition by minorities.

          “Minorities” CAN compete for legacy seats, if they are legacies.There are no “white seats”.

          Those who are serious about race neutrality have to scrap both simultaneously or lose moral credibility.

          There is no moral credibility to lose. Courts and voters have held that racial preferences are wrong (Not to mention the US Constitution). Until those courts, voters and Constitutional amendments courts hold legacy preferences wrong, the “disparate impact” is irrelevant to the fact that racial preferences are wrong

          If these universities are concerned about “fairness” (as they pretend to be) why don’t they do away with legacy preferences?

          1. “”Minorities” CAN compete for legacy seats, if they are legacies.There are no “white seats”.”

            Please reread the article, and notice how she talks about policies such as admitting the top 10% of each high school, admitting based on zip code, etc, that aren’t technically race-based affirmative action, but have the same effect. Is she saying that the top 10% rule only benefits minorities, or that everyone in a given zip code is of the same race? Obviously not. Just as she isn’t saying that legacy admissions are all white. Just that most are.

            1. 1) Those policies were designed as backdoor AA. Legacy admissions weren’t. I think the legacy stuff is wrong, but that doesn’t mean it was designed, or its current purpose is, to help white people.

              2) We’re more than a generation removed from AA. It isn’t obvious to me that legacy admits disproportionately favor whites in historically diverse states like MI and TX.

              1. 1) My point was simply that SIV was purposefully and selectively misinterpreting the arguments made in the article. Also, legacy based admission is akin to affirmative action in that it seeks to benefit a certain group of people based solely on a personal characteristic. In this case, it’s where their parents went to school instead of race.

                2) Perhaps, but despite AA, whites still go to college at greater rates than non-whites

                1. 1) I wasn’t considering SIV’s comments, because they’re dumb.

                  Also, legacy based admission is akin to affirmative action in that it seeks to benefit a certain group of people based solely on a personal characteristic.

                  Legacy admissions seek only to benefit alumni donations. Not unlike HYPS admissions to actors and the children of foreign dignitaries. Right or wrong, it’s not akin to a crass decision to select a privileged NAM over a less privileged white or Asian based on skin color alone.

                  2) That’s not the relevant question.

                  1. I wasn’t considering SIV’s comments, because they’re dumb.

                    Something, at least, we can all agree on.

  4. Every single one of these ridiculous issues goes away if we just eliminate public schools and respect private institutions’ prerogitives

  5. “top 10 percent of every school’s graduating class, including inner-city schools, something that allows it to boost its minority numbers while pretending to be race-neutral.”

    I attend the “farmer boy” school A&M, and the 10% rule is statewide. I dont know if the Texas Legislature passed it, but the 10% rule would actually put “minorities” in the disadvantage, statistically.

    1. I thought Affirmative Action was designed because in a leftist’s sick, twisted mind, minorities are not as intellectually gifted as whites…hence the set AA quota. No?

      1. It also gives them the smug satisfaction of thinking that every acheivement those minorities go on to make are on due to their rich white condensending generousity. Your welcome!

      2. It has to do with a disparity in privilege and opportunity. I’d prefer a color-blind system of class-based affirmative action.

        It would accomplish the goals of lessening the impact of genetic privilege on admissions (a pragmatic goal–favoring the offspring of the rich crowds out the worthier nonrich), and of making sure libertarians’ racial anxieties are assuaged. Not a single black person will get an unfair advantage in this country by God!

        1. “privilege and opportunity”
          Explain exactly how being “privilaged” makes someone smarter than someone else? How do the privilaged earn better grades? How do the “unworthy” rich have “genetic” privilage?

        2. Yeah Tony, cause it’s the libertarians who are so obsessed with race

        3. I’d prefer a color-blind system of class-based affirmative action.

          Only because you’re too stupid to know what that would look like. hint hint

      3. blockquote in a leftist’s sick, twisted mind, minorities are not as intellectually gifted as whites

        Ha, real funny there. Everyone knows the reason libertarians see nothing wrong with non asian minorities being 30% of the “country,” 15% of the college graduates, 3% of the CEOs, and .5% of the mathameticians is because, well, I forgot, why?

        1. Everyone knows the reason libertarians see nothing wrong with non asian minorities being 30% of the “country,” 15% of the college graduates, 3% of the CEOs, and .5% of the mathameticians is because, well, I forgot, why?

          Because they aren’t A) central planners or B) obsessed with “racial purity”. That combination of A and B lost some of its popularity after its large-scale implementation in a certain western European country that led to a little bout of genocide and a small military flap that involved every developed in the world at the time.

          1. *developed country

          2. So essentially because libertarians aren’t “central planners,” they shouldn’t notice things about the world? Logical. Notice you didn’t bother to answer my question. Is it “evil capitalism?” “Racial discrimination?” Seriously I would like to know. Certanly a black kid who has been told all his life that his people are just as smart as whites is gonna wonder why there are so few of his people in positions of power and so many behind bars. Of course, your answer would be “your a dirty collectivist central planner who thinks he’s entitled to everything!” Then you’d honestly wonder why so few blacks agree with your views. Of course you could never honestly look at the data. Because you know, your college professor told you so, that IQ leads directly to the Holocaust. But the Nazis banned IQ tests, and the Jews were a high IQ group? No, crimethink, I am a libertarian!!!!!!!!!!

  6. But even if the Supreme Court reverses the ruling, universities will still find artful ways to promote their sham diversity.

    Shikha needs to visit Berkeley.

    For starters, throwing out racial preferences that benefit minorities while leaving intact (as both Michigan and Texas do) alumni preferences that predominantly favor whites will not advance the cause of racial justice.

    So anything that whites have an advantage in is against “the cause of racial justice”?

    What’s more, race-conscious admission policies produce an unusually high drop out rate among minorities by placing them in academic environments for which they are unprepared, Sander has found.

    Finch has found a press that fawn’s over the First Lady’s intellect even though my sophomore English For Engineers professor would’ve used up a few red pens marking up her retarded thesis.

    1. “So anything that whites have an advantage in is against “the cause of racial justice”?”

      I think the point is that if you’re against affirmative action because it excludes more qualified students, then you shouldn’t support things like legacy-based admission that do the same thing

      1. Is it okay to be for basketball scholarships even if they disproportionately favor blacks?

  7. “On campus” will be an irrelevant phrase, a whole lot sooner than people in academia think. What creates a society with a level playing field is when old institutions disintegrate, in the face of technology and social trends.

    I.e., let them hang on to their fantasies, because soon they will be gone.

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