Supremes decide not to decide on affirmative action

The Supreme Court was supposed to use the latest affirmative action case (this one out of Texas) to update its thinking on whether race could constitutionally be used in college admissions. It decided not to decide the case, but may have let us know what its latest thinking is.

In a 7-1 ruling written by Justice Anthony Kennedy sent the case back to the lower appellate with instructions to ask the University of Texas whether there was any way to “produce the educational benefits of diversity” without taking race into account in admissions decisions.

I’m not sure what they have in mind but there’s a hint in the current U of Texas system. UT accepts anyone who is in the top 10 percent of their high school class (within Texas). Because of long-standing housing segregation and other factors, that apparently gets the university many more students of color than if they, for example, accepted the top 10 percent based on some standard achievement test. But UT still takes “the educational benefits of diversity” into account in filling the remainder of its entering class, and the Supreme Court is signalling more strongly than ever that it isn’t comfortable with that.

Here’s how Kennedy phrased the formula:

“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’ ”

The only justice voting against the ruling was Ruth Bader Ginsburg. Justice Elena Kagan recused herself because of involvement she had with the case before she came onto the Supreme Court. Justice Clarence Thomas repeated his previous position, which is that considering race in admissions is fundamentally unconstitutional.

Posting a quick reaction on the PBS Newshour website, attorney/legal analyst Jeff Toobin wrote:

“Affirmative action in admissions is not exactly dead, but the prognosis looks terminal to me.”

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Comments (11)

  1. Submitted by Dennis Tester on 06/24/2013 - 03:05 pm.

    For too many people

    “diversity” means race. Clarence Thomas is right. And I agree that there is value in diversity on a college campus when it means that the students come from both rural and urban settings, come from both white-collar and blue-collar families, or efforts are made to ensure the student body has diversity of thought.

    The kids at the University of Tokyo are virtually all of the same race. Yet they would argue that they have plenty of diversity.

    • Submitted by RB Holbrook on 06/24/2013 - 04:52 pm.

      Efforts to ensure the student body has diversity of thought

      Impose an ideological test on incoming students? Kick them out if they change their opinions and skew the balance? Loyalty oaths?

      Or perhaps you meant that colleges should make sure that there are plenty of faculty members willing to espouse the conservative line on economics, race, history, gender, etc. After all, it’s “diversity” when conservatives do it, but “political correctness (Shame! Shame!)” when it comes from the left.

      • Submitted by Dennis Tester on 06/24/2013 - 06:48 pm.

        Ensuring diversity of thought

        simply means that a conservative student is not subject to ridicule or worse by faculty when the student speaks or writes favorably about figures whose ideas they respect.

        Conservatives and libertarians have long ago abandoned any hope of actually getting any such thinkers on the faculty. Today they’d actually settle for an environment where the teachings of people like Milton Friedman, Friedrich Hayek, or even Jesus Christ are not openly ridiculed in class. By the professor.

        • Submitted by Neal Rovick on 06/25/2013 - 09:04 am.

          Gosh, could you please give us the multiple documented and researched examples of when and where professors openly and obviously ridiculed “Milton Friedman, Friedrich Hayek, or even Jesus Christ”.

          Until then, it is all a part of the “victimhood” game played by the right.

          If you did some research, you might realize that there are a significant number of conservative and Christian universities and colleges, even in Twin Cities. If there is a belief that you don’t want questioned, or if you need your beliefs reinforced by being surrounded by like thinkers, or if you believe that all areas of study need the unquestioned influence from Hayek, Friedman and Jesus, these colleges are waiting for you or your child’s enrollment.

          But public universities are generally supposed to expose students to the marketplace of ideas. I would safely say that quoting the Bible or Jesus as a reference in any of the sciences will not happen there. But as for Hayek and Friedman, you should do some research on the dispute of “freshwater” vs. “saltwater” economics and realize that there is a diverse range of thought and active disputes where you can find the school that supports your preferred prejudices. I’m sure you will find more than a few derisive jokes about Krugman when you go to the Chicago School of Economics.

          • Submitted by Dennis Tester on 06/25/2013 - 09:58 am.

            “But public universities …”

            are generally supposed to expose students to the marketplace of ideas.”

            Uh, that’s kind of my point, sir. Right now too many are echo chambers.

            • Submitted by Neal Rovick on 06/25/2013 - 11:46 am.

              I’m not sure where you get the idea that Friedman or Hayek are not a part of the curriculum at every public university or college in political science or economics departments.

              Perhaps you are upset because they are just a part of the curriculum and not placed at the pinnacle of reason and knowledge. Their super-elevated status is your (and other’s) opinion, not a fact.

              Economics is a pseudo-science–an ad-hoc rearrangement after the fact of theory to fit certain observed facets of the multiple dimensions of reality. In fact, it is interesting you cite Jesus along with these two, emphasizing the faith-based nature of most economic theory.

            • Submitted by Paul Brandon on 06/25/2013 - 08:51 pm.

              The question is….

              When was the last time you were actually IN a University classroom?
              I retired three years ago after 45 years of teaching in university classrooms; I know something about it firsthand.
              Do you (reading someone else’s blog post does not count)?

        • Submitted by RB Holbrook on 06/25/2013 - 09:31 am.

          Conservatives on Campus

          If you think Friedman, Hayek, et al. are subject to “open ridicule,” you obviously aren’t familiar with the University of Minnesota economics department.

          Face it: conservatives are big cry-babies. Disagreement is taken as persecution, and a failure to defer (“Why yes, you’re absolutely right! Ayn Rand WAS the most profound thinker of her time!”) is taken as ridicule. Perhaps conservatives need to do what they tell women and minorities to do when they perceive an insult; namely, get over it and cope.

    • Submitted by Paul Brandon on 06/24/2013 - 07:13 pm.

      Of course

      Clarence Thomas got into Yale because of affirmative action, and arguably got onto the Supremes the same we (‘C’ rating from the American Bar Association of his legal competence).
      As regards to the University of Tokyo, I was unable to find any information about racial diversity (relative numbers of ethnic Japanese, Japanese of Korean or recent Chinese ancestry, Ainu, Chinese, other SE Asian, European, etc).
      What is your source of information?

      • Submitted by Neal Rovick on 06/25/2013 - 10:41 am.

        I’m pretty sure Mr. Tester would be appalled if a US public university taught their classes in any other language other than English.

        Well, oddly enough, the University of Tokyo teaches it’s classes in Japanese. Students are expected to have a university level competence in the language, which drastically lowers the diversity of the students beyond native Japanese who have been speaking and writing it for their entire academic life.

        How many competent, university-level, Japanese-speaking and writing high-school students are there elsewhere in the world? Where would the diversity for the University of Tokyo come from?

        But, the school is introducing a program of courses in English so that a person who doesn’t have the language can attend. It’s not of any real size right now and limited in degree.

        So the diversity issue with respect to the University of Tokyo is a red herring.

  2. Submitted by Paul Brandon on 06/26/2013 - 09:35 am.

    “Supremes decide not to decide”

    That’s been the pattern of this court:
    Avoid any ruling that might actually set a precedent.
    All of the rulings on major issues have been so narrow that they apply only to the specific cases before it.

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