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SCOTUS and “educational benefits that flow from diversity”

Conservatives see no value in it

A Mercedes convertible with German grille badges pulled into the parking lot of the early voting location where I electioneered Monday. A trim, attractive woman in workout gear stepped out. I offered her some Democratic candidate information. She waved me off saying, “I worked for my money.”

“Hey, me too! I designed factories where thousands got jobs!” I might have said. But I refrained and replied, “Thanks for voting.”

It’s almost as if we’d had very different life experiences. She had no conception of mine even though we are both white. And the appreciation gap between her and non-whites?

That gap not just in lived experience is at the heart of the affirmative action cases involving college admission at the University of North Carolina and Harvard. The U.S. Supreme Court heard arguments on Monday.

Eugene Robinson observes (Washington Post):

The fact is that universities have admissions policies that greatly favor wealthy White applicants — “legacies” whose parents attended the school; sons and daughters of major donors; applicants who are good at arcane sports not offered at the high schools most minority students attend. One of the court’s most conservative members noted this reality. If those preferences were ended, Justice Neil M. Gorsuch observed, “We just would have a crummy squash team and no art museum. Then what?”

The answer: Universities might have more room in their freshman classes to address alleged discrimination against qualified Asian American applicants. Fairness would suggest that ending preferences for the wealthy and well-connected is a better remedy than ending policies designed to provide opportunity for underrepresented applicants.

Dahlia Lithwick and Mark Joseph Stern explain at Slate:

The history of affirmative action at the Supreme Court is not particularly complicated. In 1978’s Bakke decision, a majority found that universities could consider race to build a diverse student body, identifying educational benefits that flow from diversity. At the same time, a majority prohibited quotas and other rigid metrics that reduced applicants to their race, requiring universities to undertake a holistic review of each applicant. The Supreme Court affirmed this principle in 2003’s Grutter v. Bollinger and again 2016’s Fisher v. Texas.

Although these cases involve both public and private institutions, the Supreme Court has consistently held that federal law simply applies the equal protection clause to private universities that receive federal funds. So, in theory, the justices should’ve been debating the meaning of the Constitution. Instead, the conservative justices continually reverted to free-floating policy discussions about how affirmative action makes them feel. (Hint: they feel bad.)

Lithwick and Stern explain that in the conservatives’ view, “the 14th Amendment was not a breakthrough because it granted Black Americans equal citizenship, but because it made race irrelevant to the government.” It is another example of the sort of “ahistorical nonsense” Justice Ketanji Brown Jackson attacked in hearing Merrill v. Milligan earlier this month while schooling the court’s originalists in originalism. “The 14th Amendment was a color-conscious effort to give Black Americans all the rights and privileges enjoyed by white Americans,” write Lithwick and Stern.

Conservative justices focused instead on when affirmative action should sunset and on whether race-consciousness is even necessary anymore.

Perhaps they slept through the nationwide protests to police killings of black men and women in 2020.

“When is your sunset?” asked Justice Amy Coney Barrett. “How do you know when you’re done? I appreciate that you’re undertaking all those efforts, but when is the end point?”

Robinson suggests:

How about when the racial wealth gap is closed? As a report last year by the Federal Reserve pointed out, “the average Black and Hispanic or Latino households earn about half as much as the average White household and own only about 15 to 20 percent as much net wealth.” What about when the mean SAT scores for Black, Hispanic and American Indian/Alaska Native high school students consistently are on par with those of White and Asian students? Maybe when we are a generation removed from the vast racial inequities of mass incarceration?

That’s the honest answer: Affirmative action is a very late-in-the-game intervention to try to prevent larger inequities from replicating themselves inside a small number of elite institutions. Affirmative action will no longer be necessary when the larger conditions that make it necessary have been done away with.

But consider again the “educational benefits that flow from diversity,” a concept Justice Clarence Thomas questioned as meaningless. Thomas likened arguments for it to arguments favoring segregation.

Justice Elena Kagan argued that universities are “pipelines to leadership” and should reflect American values of pluralism:

Your brief says it just doesn’t matter if our universities look like America. I’m asking you — doesn’t it? These are the pipelines to ledership in our society. It might be military leadership, it might be business leadership, it might be leadership in the law… Universities are the pipeline to that leadership. If universities aren’t diverse,  and your rule suggests that it doesn’t matter, well then, all of those institutions aren’t going to be racially diverse either.

How then is that “more perfect union” to which the Constutition aspires to come about without effort? Indeed, one can argue that stark political divisions in this country have led to recent violence. And that violence is a result of grotesque misunderstanding among us exacerbated not only by disinformation in broadcast and social media, but by urban-rural, racial, and other cultural divisions. Diversity in college admisssions strives to address those divisions where communities have not. The military serves a similar function, although it may not be a specific goal.

I shared a story by a playwright friend, David Castro, who grew up in the Bronx:

Castro: I grew up in lower-middle class/working class diversity in the Bronx and I’ve often joked that I grew up among the 5 major food groups of NYC at the time – Irish, Italians, Jews, Blacks and Puerto Ricans. And it was an education. By the age of 10-12 I’d eaten at everyone’s house, stayed over, went to their churches and synagogues for confirmations and bar mitzvahs, weddings and funerals, listened to their music and saw with my own eyes, as my first generation American mother said, “Don’t let anyone ever tell you that so-and-so’s parents don’t work as hard as anyone else. EVERYBODY HERE WORKS HARD.”

What’s more, David said once, although the foods and religious iconography changed from house to house, growing up none of that was threatening. They were just your friends’ parents.

“Racial discrimination in housing, education, and many other aspects of American life persist,” write Lithwick and Stern. The court’s conservatives would rather wish them away than make efforts at perfecting the union even in the face of mass protests and political violence. They like the country just as it is because it suits them.

In electioneering, it is not unheard of for Republicans to attempt to start arguments by issuing challenges to liberal policies they perceive as offensive. I recommend our people not engage.

What’s notable is how threatening they consider my mere presence. I’m secure in my world view and feel no need to challenge theirs unprompted. But Republicans? Not so much. Their ideological bubbles are rather fragile. Like the woman’s in the Mercedes.

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