Affirmative Action's Demise and Higher Education

Fruits of a credibility collapse

So the Supreme Court has ruled against Harvard and UNC, and in the process fatally wounded the “diversity” and “affirmative action” practices of most every higher education institution in America.

There’s a lot to say about that, but I want to mark one important point:  This ruling represents a drastic retreat in the social position of higher education.  Though the ruling itself is not so much the cause as a symptom.

Media accounts I’ve seen have tended to suggest that the Supreme Court had found that “diversity” is a compelling interest, sufficient to justify overriding the Constitution’s ban on racial discrimination.  For example, the Wall Street Journal’s report stated:  “For 45 years, the Supreme Court has recognized a limited exception to that rule for university admissions, one based on the schools’ academic freedom to assemble classes that support their educational mission. Diversity was a compelling interest, the court had found.”

But the Supreme Court did not itself find that diversity was a compelling interest.  Rather, it deferred to universities’ claims that diversity was a compelling interest.  A court defers to someone else when it says that it may have a different opinion on the matter itself but it will allow the opinion of the person or entity in question to control because of their expertise.  So, for example, under the now moribund doctrine of Chevrondeference, the Court would defer to an agency’s interpretation of the statute it administers, even if the Court would have interpreted the statute differently.

Thus, for example, in Grutter v. Bollinger the Court said:  “The Law School has a compelling interest in attaining a diverse student body.  The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”  (Italics mine). So diversity is a compelling interest only because the university says it is.

Deferring to an agency or a university on the question of what policies best serve a compelling interest is one thing; deferring on the question of what constitutes a compelling interest is another, much bigger, thing.  But that is what the Court has done up to now.

But no longer.  As the majority opinion today noted:  “The universities’ main response to these criticisms is ‘trust us.’  They assert that universities are owed deference when using race to

benefit some applicants but not others. While this Court has recognized a “tradition of giving a degree of deference to a university’s academic decisions,” it has made clear that deference must exist ‘within constitutionally prescribed limits.’”

“Trust us” was essentially the argument offered by the University of Michigan in Grutter, and one that was cheerfully accepted by the majority there.  Not so much today.

But who trusts higher education anymore?  At the turn of the millennium, when Grutter was decided, American higher ed was at its zenith.  Since then a series of scandals – just today a famous “ethicist” at Harvard was charged with fraudulent ethics research – has undermined its reputation for probity (and the Hollywood admissions scandal of a few years back certainly undermined the perceived integrity of its admissions process), even as everything else about universities came to seem less serious.  With 57 genders, coloring books and crying rooms for election results, endless crusades against “whiteness” and “heterosexism,” and the like, the notion of deferring to the educational seriousness and expertise of those in charge of the asylums of higher ed seemed much less appealing.  Whom the gods would destroy, they first make ridiculous.  But higher education has supplied the ridiculousness itself.

The Supreme Court, and federal courts in general, have a longstanding tradition of giving academia extra-favorable treatment.  Part of that is for class reasons, as I’ve noted in my The Judiciary’s Class War.  Part of it is because judges, who have life tenure in order to publish their views on important issues – and even wear academic-type robes while working – may identify with academics on a more subtle level.  But it’s harder to identify with people who are ridiculous, and higher education has made itself ridiculous.

This shows in popular culture as well. Higher education is mocked more, treated as a waste of money, a place where henpecked professors are afraid to say anything, and where administrators live high while students learn nothing. Polls indicated that a lot of people agree. It’s unsurprising that we’re seeing less respect in the courts, too.

So, regardless of what happens with affirmative action – lots of lying and dodging by schools, lots of civil rights lawsuits by plaintiffs is my prediction – I think a larger prediction is that higher education will in general enjoy less favorable judicial treatment in the future than it has enjoyed over the past century or so.  If so, it will have no one to blame but itself.

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