By granting certiorari in Fisher v. University of Texas, the Supreme Court has a chance to correct one of the most obnoxious aspects of modern jurisprudence. By that I mean permission given to state universities—in Grutter v. Bollinger(2003)—to use public resources to play racial and ethnic politics.
I worked full time in public higher education for 23 years and part-time for eight years before that. The experience made it clear that (whatever some well-meaning people might believe) university “diversity” policies are not mostly about education, but about indulging ideology and playing ethnic politics.
University “diversity” policies vary in their details. But in their now-prevalent form, they are carefully gerrymandered to skew benefits toward particular groups with left-of-center voting patterns and away from groups without such patterns. For example, the three groups benefited in the Grutter case were African-Americans, Native Americans, and Hispanics—which all just happen to be (surprise!) core constituencies of the National Democratic Party.
Several factors led me to conclude that the correlation between benefits and voting patterns was not merely accidental. They are:
* Those who promote these policies generally have a group-politics-based ideological bent. As a rule, you don’t see the most serious scholars or most rigorous teachers eager to serve on the “diversity” committees.
* There is no effort to address the inconvenient fact some studies show that greater ethnic “diversity” impedes, rather than assists, student achievement (because a class of students with common background has a common vocabulary and cultural platform).
* Groups with histories of discrimination but without the “correct” voting patterns are excluded from benefits. Asian Americans and eastern Europeans are examples.
* The purported benefits of “diversity” don’t induce universities to assure ideological diversity.
Caught in the middle (as so often) have been the Jews. Although most Jews vote Democrat, they are a relatively small part of the voting population, so the advocates of “diversity” usually throw them under the bus. In the early and mid-20th century, university administrators limited Jewish access to higher education by imposing on them maximum “quotas.” Now the successors of those administrators limit Jewish access by granting to other groups minimum “goals.” (In the real world, of course, a “goal” benefiting one group is merely the inverse of a “quota” restricting another.)
To be sure, there is a decent argument for allowing private educational institutions some ethnic flexibility in admissions so long as they don’t violate the civil rights laws. But the state universities involved in such practices are not private: they are state agencies that are all too willing to take your tax dollars. As such, they are bound by the Equal Protection Clause of the U.S. Constitution, which says that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
It was on the basis of the Equal Protection Clause that the Supreme Court rightly ruled inBrown v. Board of Education (1954) that racial segregation—even “separate but equal” racial segregation—in government educational institutions was unconstitutional.
The ruling in Brown would seem to clearly ban ethnic game-playing by state agencies, since those practices do not feature even the pretense of “equality.”
However, as part of the corruption of its jurisprudence during the 20th century, the Supreme Court ruled that a state may override constitutional rights if the state proves that doing so is “necessary to promote a compelling governmental interest.” You would think that a “compelling” interest might be something like defending the nation’s shores. But as might have been predicted, the courts often have found “compelling” whatever is the political fashion of the day.
Thus, in Grutter v. Bollinger, the U.S. Supreme Court found “diversity” among state law students to be a compelling interest—absurd, since there is no compelling reason a state has to operate a law school at all. The Court also failed to meet its own rule in such cases, since it deferred to university administrators rather than requiring them to prove that “diversity” offered educational benefits.
The history of the Equal Protection Clause shows that its core purpose was to end state racial discrimination. In the Fisher case, the Supreme Court should announce that if universities want to play racial politics then, within the limits of the Civil Rights Laws, they may do so—as private institutions.
But as long as they remain state entities, the Constitution requires them to treat all ethnic groups alike.