Another Chance for SCOTUS to Get It Right on Affirmative Action

The U.S. Supreme Court announced on Monday June 29 it will revisit the constitutionality of the admissions plan at Texas’s flagship university.  The grant of review of Fisher v. University of Texas at Austin in the use of race in admissions decisions could strike at the heart of affirmative action, or more precisely, racial segregation in education, as it should. The Equal Employment Opportunity Executive Order  issued by President Kennedy in March 1961 had no verbiage related to education or college admissions.  This divergence from law began with the Regents of the University of California v. Bakke , 438 U.S. 265 (1978) (https://www.law.cornell.edu/supremecourt/text/438/265). It was a landmark decision by the U.S. Supreme Court modifying the existing labor law regarding affirmative action to allow race to be one of several factors in college admission policy. Even though the ruling was overturned when sent back to the lower courts, university administrators throughout America have since used the ruling to socially engineer universities to meet their progressive agenda. Contrary to being a progressive agenda, it is just the opposite. It places American schools, and by extension potential college students, on a path to chaos and failure.

Gregory L. Fenves, the president of the University of Texas at Austin, said in a statement issued by the University of Texas,

“Under the Supreme Court’s existing precedent, the university’s commitment to using race as one factor in an individualized, holistic admissions policy allows us to assemble a student body that brings with it the educational benefits of diversity for all students.”

If Fenves considered the University’s policy of racial discrimination in admissions as a demonstration to young people who are preparing for college that all their hard work can be rendered meaningless by bureaucratic bigotry, he hit the bull’s eye. Fenves meaningless rhetoric is designed to ignite fervor among those who do not meet the qualification requirements for admission yet believe they have some legitimate entitlement to displace potential students of different races who have worked hard to achieve their goal.   

The holistic and somewhat secretive approach stated by Fenves that brings the benefits of diversity to all students has never been completely defined. That may be attributable to Fenves membership in the secretive, non-scholastic Quill and Dagger Society.  The Quill and Dagger Society at Cornell University has not only a long history, but a long history of racial discrimination. Perhaps the secrecy and discriminatory policies President Fenves has implemented at the University of Texas are vestiges of old prejudices developed in secret at Cornell.

Fenves has never explained how qualified students who were denied admission by this racial discrimination benefit from diversity. What is the message being sent to current students who will become leaders in government and business? Who gets to decide what culture is at the University of Texas, and whose culture gets preferential treatment?  Fenves’s language alone makes one wonder if he was drinking the same tea Justice Sandra Day O’Connor was drinking in Grutter v. Bollinger, 539 U.S. 306 (2003) when she presented the majority opinion with the now infamous statement that the discrimination must have a twenty five year durational limit.

I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider the planned duration of the remedy in determining whether a race-conscious program is constitutional.

Exactly what does race-conscious mean? Race was officially used by then-Secretary of State Thomas Jefferson in the first census in 1789 in order to apportion States’ representatives to Congress. He believed it was necessary to determine who were counted as slaves and freed men, since they were also counted in the census. This segregation of Americans continues, visibly in the Department of Education where metrics collected have racial components, yet the Department of Education’s definition leaves one wondering what race they belong to. To date the Department of Education has not issued any color coded cards, or spectrum analyzer test to determine one’s race. To read the Department of Education’s definition of race leaves one equally confused.

German Fulbright Exchange student Ilke Bauer said when confronted with race in college admission forms in America:

As soon as I arrive, it starts: the first form to fill out, and in the space for giving information about oneself says: Race. ...That would not be the only time during my 18 month stay in the U.S.A. that the issue of race would come up... questions about what one is and to what group one belongs seem to have enormous importance here.... I am very irritated by the relentless inclination among American to differentiate people according to their race or ethnicity. Race: the very word makes me wary, because I immediately associate it with Nazi Germany....1

American education struggles with superfluous foolishness such as this when there are real problems to be addressed. Affirmative action in education was not articulated in Kennedy’s Executive order but advocates of racial preference, i.e. racial discrimination, over the years hijacked the term and through political maneuvering now claim it as law. It’s not...just the opposite. Discrimination by any name is the same. To make admission decisions by race in any manner is discrimination, regardless of the cultural inclusion arguments made by advocates.

To agree and accept the issue of racial prejudice in any manifestation in education is to accept that members of certain racial groups as defined by the Department of Education do not have the intellectual capacity to compete without preferences. Advocates are in effect telling some students that because of their race they may not be accepted into some colleges because vacancies are being filled by a discriminatory preference plan. It is also sending a message to African-American potential students at the same time telling those receiving the preferences do not measure up and need entitlements.

If the goal is to do away with discrimination in education, the first step is to do away with segregation in schools. I refer to the racial categorization of students by race as defined by the Department of Education. If there were no education metrics associated with race, there would be no discrimination by race. All students would have to “measure up” in a race blind environment. But for some that is the problem; it would not be possible to distinguish who should receive the entitlements. On the plus side, either entitlements would either go away or everyone would be entitled. 

While administrators such as Fenves are feted with honors, financial bonuses, and awards for being progressive and forward thinking, the victims are young people; potential students who will be America’s leaders tomorrow. What lesson is Fenves teaching? What and whose culture is he perpetuating and who made the decision which culture is the selected one? More to the point, can Fenves even define culture as it applies to the policy he advocates?  Unfortunately, tomorrow’s future leaders may or may not be qualified if Fenves’s policy remains, while young people who do meet the qualifications and should be America’s future leaders are turned away.

If America really wants better race relations, and President Obama continues to insist after seven years we need to have a serious discussion about race, then let the conversation happen. Let it start with this case where it really means something. Let’s give our young people, our leaders of tomorrow the advantage of not burdening them with the disadvantage of government institutionalized racial discrimination. Do away with race as a metric. Eliminate affirmative action in all colleges as a shameful discriminatory action. Unfortunately, as long as racial conflict remains a money-making industry for charlatan activists and bureaucrats such as Fenves and the University of Texas, America is doomed to the eventuality of progressive racial discrimination.

President Obama speaks of eliminating discrimination in all its manifestations; Justice Kennedy wrote eloquently of elimination of discrimination in the majority opinion requiring states to allow same sex couples to marry. Perhaps the President and the Justices can extend the same consideration to America’s youth.

Larry Creech holds a BA and MA in Humanities and Liberal Studies from Georgetown University where he is currently preparing to defend his Doctoral dissertation in interdisciplinary studies.

1. James T. Lamiell, Beyond Individual and Group Differences. (Thousand Oaks: Sage Publications, Inc., 2003) 300. http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin-2/?wpmp_switcher=desktop