Scott’s six notes on “mismatch” add a much needed clarity to the discussion of race-based preferential admissions to college. I want to add seven notes on the concept of diversity, which Scott discussed.
Note 1: The ideology of diversity is, as Scott says, relatively new. The concept of diversity, however, has been around for quite a while. Decades ago, it was common for elite eastern colleges to strive for geographic diversity by admitting students from thinly populated Western states and from foreign countries. As I understand it, standards were relaxed slightly to achieve this purpose.
The resulting diversity was thought, marginally, to benefit the student body. It also helped the college extend its reach nationally and internationally. Perhaps someone admitted in the name of geographic diversity might become the governor of a state or an influential member of a foreign government.
Note 2: This approach to diversity differs significantly from the racial diversity colleges now seek pursuant to the ideology of diversity. Colleges weren’t seeking to approach proportional representation, or “critical mass,” as they seek to do now with respect to race. In part for this reason, the relaxation of standards required to obtain the diversity sought was nothing like the current relaxation, under which black admittees have SAT scores hundreds of points lower than their white counterparts.
Note 3: As Scott points out, the ideology of diversity stems from Justice Lewis Powell’s stand-alone opinion in the case of Regents of the University of California v. Bakke. Justice Powell, the swing vote in that case, believed that the only justification for racial preferences in admissions is to further the goal of diversifying the student body.
The ideology of diversity is therefore based on an accident, so to speak. If Powell had not been the swing vote, or if he rejected racial preferences altogether, or if he had fastened on to another justification, the diversity industry would not exist.
For example, suppose Powell had upheld preferences based as a remedy or reparation for past discrimination against blacks. No one would be talking about how many black students it takes to achieve “critical mass,” or about “qualitative diversity” — i.e., what kind of blacks a college must admit to give other students the full benefits of diversity, or about any other such stereotypical and demeaning topics. Instead, “experts” would be analyzing the extent of past discrimination in the state where the university is located, purporting to measure its present effects, and so forth.
Note 4: In this scenario, racial preferences on the order of magnitude that prevails today would probably be on a stronger footing. No one can deny the past existence of virulent racial discrimination. No one can deny that such discrimination persisted well into the second half of the last century. It’s difficult to deny that its effects are still felt today.
While it’s impossible to unscramble the egg and thereby say what the level of black representation would be in a given student body absent slavery, Jim Crow, and other evils, it’s plausible to presume that it would be something like black representation in the population.
But the remedial justification didn’t appeal to Justice Powell (and not without reason). Thus, those who want to admit blacks to college in large numbers were stuck with the diversity rationale.
Note 5: Few would deny that some racial diversity in a student body is worthwhile. I don’t think I’ve ever heard anyone say they want to see African-American students nearly vanish from elite college campuses.
But it’s easy to question whether a given level of African-American representation in a student body is necessary to achieve diversity as the concept was always understood (see Notes 1 and 2). Stated differently, it’s probably impossible to show objectively that the levels universities strive for are necessary for this purpose.
Attempts to do so, for example by analyzing black representation on a classroom-by-classroom basis, descend into farce. Why must there be a black student in, say, a physics class? What, Chief Justice Roberts wanted to know, is the unique black perspective on physics?
Why, for that matter, is a black needed in any particular class? It would be terrible to attend college and never hear from a black student. But where’s the need to hear from one on the subject of Charles Dickens, David Hume, or the Catholic Reformation? And what if the black student in that class doesn’t speak up?
Note 6: Given the futility of proving a diversity-based need for admitting the number of blacks universities desire, administrators rely on deference to their judgments. The Supreme Court has been willing (at least for a 25 year period, half of which has now expired) to defer to the judgment that diversity serves an important educational purpose. But it is less willing to defer to judgments about whether the racial preferences used to attain this purpose are well-tailored to meet it.
This leaves administrators in a tough spot. It was clear from the responses to question by Chief Justice Roberts and Justice Alito during the oral argument in Fisher v. University of Texas at Austin that the University hadn’t conducted the kinds of analyses needed to satisfied searching “means-ends” scrutiny. When Justice Kennedy brought up the possibility of a remand so that evidence could be presented to address questions like those raised by Roberts and Alito, the University’s lawyer made it clear enough that there is nothing much to add to the record.
Note 7: Courts should not defer to university of administrators when it comes to diversity. For one thing, the ideology of diversity is a contrivance — a litigation-driven yarn developed due to the happenstance of Justice Powell’s opinion in Bakke. (See Note 3).
That aside, administrators have repeatedly demonstrated their bad faith. For example, they suppress data about the scope and impact of their preferences and often ostracize faculty who attempt to point out the seriousness of the problem of mismatch produced by the preferences.
Administrators have also been known to grant secret preferences outside of their regular preferential admissions regime. According to Hans von Spakovsky and Elizabeth Slattery, in Fisher the University of Texas concealed the existence of certain preferences from the court during litigation.
As Thomas Sowell says, in the quotation with which Scott concludes his post, “a highly successful strategy used by academic administrators and other defenders of racial preferences in higher education has been to simply ignore [note: or conceal] any and all evidence that goes against their policies or the assumptions behind those policies.” It’s time for the Supreme Court to render this strategy unsuccessful and to put strike down the racially discriminatory policies it supports.