We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt.
The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”
Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast). The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.” Something strange, indeed.
The “Rooney Rule” is the latest debasement of academia. The controversial halftime show at Super Bowl 50 demonstrated–if any proof was needed–that the NFL is in the entertainment business. The football cartel's ratings-conscious bean counters carefully assessed television demographics to maximize the spectacle's appeal to the broadest possible audience–bread and circuses for the masses. It worked. The musical trifecta of Coldplay, Beyoncé, and Bruno Mars was a cynical mishmash of genres that helped attract a viewing audience of nearly 112 million people to an otherwise boring game. Professional football is big business, and it was fitting that the 50th iteration of…
Fisher v. University of Texas turns on whether Texas’s preferential treatment of certain minority groups is necessary to achieve “diversity.” Diversity in the academic world is now one of its central organizing principles, although diversity remains an instrumental good, not a good in itself. Racial and ethnic diversity, it is said, helps students learn about different points of view and prepares them to live and lead in a multiracial and multicultural society. This new orthodoxy creates a relentless focus on race and ethnicity in admissions, and at times even more so in faculty hiring.
A few days before Fisher was argued but not in connection with the case, Ezra Klein of Vox amassed data suggesting that the greatest cleavages society were not between racial and ethnic groups, but between members of different political parties. A high percentage of members of both parties, for instance, expressed horror at thought of a daughter or son marrying outside the faith. Large majorities of both parties would be likely to hire a member of their party over that of another. As Ilya Somin has noted, such partisanship has troubling implications for democracy. Partisans will be more likely to dismiss opposing views reflexively, making beneficial decision making far less likely.
Thus, assuming we accept diversity as essential in higher education, it would seem that we need at least as much political diversity as diversity with respect to race and ethnicity.
Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Ironies abound in the long-running affirmative action case of Fisher v. University of Texas at Austin, which has come before the U.S. Supreme Court (again) following its 2013 remand to the U.S. Court of Appeals for the Fifth Circuit for reconsideration.
Abigail Fisher’s cert petition is scheduled for conference later this month. In Fisher I, the Supreme Court decided by a vote of 7 to 1 (Justice Kagan abstaining) that the Fifth Circuit had failed to apply correctly Grutter v. Bollinger (2003), the inscrutable 5 to 4 decision that upheld the University of Michigan’s use of racial preferences in admissions based on Justice O’Connor’s controversial notion that, if necessary, race could be used as a factor to achieve the mix of minority students necessary to realize the perceived “educational benefits” of diversity.
As we all try to keep up with the Supreme Court’s Operation Fast and Furious (And Keep the Best For Last), here’s a dorky but perhaps telling point on yesterday’s civil rights decisions: Two of the cases dealt with employment discrimination—one, with the question of who qualifies as a “supervisor”; the other, with the legal standards that apply to retaliation claims. (Both were 5-4 decisions, with the usual ideological line-up.) In both cases, the statutes at issue are administered by the Equal Employment Opportunity Commission. The EEOC wasn’t a party to the proceedings (it just issued “right to sue” letters), but…