Racial Discrimination on Campus Likely to Go on Forever

By Barone, Michael | Examiner (Washington, D.C.), The, June 30, 2016 | Go to article overview

Racial Discrimination on Campus Likely to Go on Forever


Barone, Michael, Examiner (Washington, D.C.), The


"Affirmative action" will continue to be the routine course of business of college and university admissions for the foreseeable future. That's the bottom line from the Supreme Court's June decision in Fisher v. University of Texas.

By a 4-3 vote, the Court essentially approved the University of Texas's "holistic" admissions as not violating the civil rights of white plaintiff Abigail Fisher. Justice Anthony Kennedy, as a Wall Street Journal editorial noted, "overturned himself." That leaves five votes for racial quotas (counting Justice Elena Kagan, a lockstep liberal on this issue, who recused herself from this case) regardless of who eventually takes Justice Antonin Scalia's seat.

When the same case came up three years ago, Justice Kennedy wrote that "any official action that treats a person differently on account of his race or ethnic origin is inherently suspect." This time he wrote that a university is owed "considerable deference" when choosing students with "intangible qualities which are incapable of objective measurement but which make for greatness."

If you've followed this issue at all, you know what all this mumbo jumbo means. It means that college and university admissions officers can discriminate by race, in favor of blacks and Hispanics and therefore against whites and Asians.

As they've been doing, aggressively for almost all of the half- century since the Civil Rights Act of 1964 prohibited such discrimination. Some institutions, it seems, are so high-minded and well intentioned that they can systematically and repeatedly disobey the Constitution and the law.

Backers of this form of racial discrimination argue that it does a lot of good for some people and not much harm to others. Applicants accepted because of their race will benefit. Applicants rejected because of their race by one selective school will probably be admitted to another one pretty much as good.

The facts may support the second proposition; Abigail Fisher will probably do all right in life. Unfortunately, they don't support the first proposition. And what is fascinating is that this was foreseen, more than half a century ago, by another judge whose wise advice was rejected.

That was Justice Macklin Fleming (1912-2011), who graduated from Yale Law School in 1937 and was appointed to the California Court of Appeals in 1964 by Gov. Pat Brown. In an exchange of letters with Yale Law Dean Louis Pollak in June 1969 (the month of my graduation there) later printed in The Public Interest, he criticized Pollak's policy of admitting "10 percent of each entering class without regard to qualification under regular standards. …

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