Two 2003 cases involved the University of Michigan. In one, the court declared unconstitutional the undergraduate admissions policy of adding 20 points — equivalent to an entire letter grade — to the admissions scores of certain favored minorities. In another, the court upheld the Michigan law school’s preference policy because, although its magnitude of discrimination was larger, it did not involve an explicit formula. The court decided universities deserved deference for non-formulaic preference policies because the institutions were guided by considerations of pedagogy — academic benefits of “diversity” for all students.
The nine justices agreed that the law school’s policy was racially discriminatory, and hence the school had to demonstrate that the policy was “narrowly tailored” to serve a “compelling” interest. But, say Heriot and Mulder, the court majority “eviscerated” this supposedly strict standard by saying the court should “defer” to the law school’s “educational judgment,” and to “academic freedom.”
One cannot, the authors say, simultaneously “strictly scrutinize a government’s actions and defer to its judgment.” The court’s deference “put a heavy thumb on the scale in favor of race discrimination. But … the Court is supposed to do everything it can to avoid approving race discrimination and instead to favor race neutrality.” And, the authors say, it is inconceivable “that academic freedom would have been sufficient to justify any other form of race discrimination.” In the 1950s, there were many education experts who believed that “students learn better in racially segregated schools.” Fortunately, the court then exercised its own judgment.
Since then, Heriot and Mulder say, the court has not explained “why, alone among government instrumentalities, public colleges and universities should be exempt from the strong presumption against racially discriminatory laws and policies (or why, alone among industries, private colleges and universities should be exempt).” Research into schools’ practices shows that race-based admissions are the product not of empirical educational research but “of political winds from both inside and outside each institution,” and are intended to keep campus peace and attract funds.
The authors correctly say, “The quality of a college education is a difficult thing to judge, especially in the short run,” so education is “prone to fads,” especially politically fashionable ones. Today’s fad — racial monomania — deepens the contradictory nature of the argument for the constitutionality of race-based admissions: Preferences supposedly improve the diversity pertinent to education — diversity of views — yet also dissolve stereotypes about race being a reliable indicator of mentalities.
Presenting “diversity” as an educational benefit for all students is academia’s way of justifying racial discrimination actually intended for aims that the Supreme Court has not said justify such discrimination — “social justice,” or compensation for past injuries. As Harvard law professor Randall Kennedy, who supports affirmative action, writes, many advocates of racial preferences in the name of diversity’s benefits (“only a contingent, pedagogical hypothesis”) “would rightly defend affirmative action even if social science demonstrated uncontrovertibly that diversity (or its absence) has no effect (or even a negative effect) on the learning environment.”
The Michigan law school case assumed, Heriot and Mulder say, the educational benefits of racial diversity and assumed that these benefits were the school’s motivation for racially discriminatory admissions. As Justice Sandra Day O’Connor, alluding to a 1978 case, wrote for the court’s five-justice majority in 2003: “ ‘Good faith’ … is ‘presumed’ absent ‘a showing to the contrary.’ ”
But why this presumption, given academia’s politics and fads, and given that the supposed educational benefits of diversity remain a (politically convenient) “pedagogical hypothesis”? Next year, the Supreme Court’s duty will be to exercise its judgment, not to defer to such presumptions.