Blog No. 6 The Supreme Court, Republicans and Race. PART I, Race As a Factor in College Admissions

Issues involving race often provoke strong emotions that make them difficult to discuss. Republicans know that difficulty full well. Although, as we sometimes remind ourselves, our party is “The Party of Lincoln,” we are too often seen as insensitive or even hostile to the rights and aspirations of minorities. Needless to say, Democrats work hard to reinforce that impression and it is an impression that can be costly at the ballot box. Taking thoughtful and constructive positions on racial issues is not only an ingredient of responsible governance, but clearly has electoral consequences. As conservative columnist Ross Douthat recently wrote:

“[F]or all the talk about how important Hispanics are to the conservative future, the Republican Party could substantially close the gap with Democrats in presidential elections if its post-Obama share of the African-American vote merely climbed back above 10 percent — a feat achieved by Bob Dole and both Bushes. If that share climbed higher still, the Democratic majority would be in danger of collapse. Such a turn of events wouldn’t just be good news for Republicans. It would be good news for black Americans, as it would mean that both parties were competing for their votes.

In addition to the view of Republicans held by African-Americans, there are of course many “majority” voters for whom a positive approach to racial issues is an important concern. Thus racial matters are one of several areas where it is important for Republicans not to be, or appear to be, simply obstructionist.

In the last week of its term, the Supreme Court issued two decisions involving matters of race.  Fisher v. University of Texas involved a college admissions policy  which specified race as a factor to be considered. In Shelby v. Holder, the Court struck down a provision of the Voting Rights Act requiring certain jurisdictions to obtain “pre-clearance” before making changes in their election laws. Liberals and conservatives had predictably different views of the result in each case. Of the two cases, Shelby is more important as a matter for political debate and decision, but Fisher will remain a significant part of the conversation about race.

In Fisher, the Court again took the view that there is a compelling governmental interest in providing a diverse educational experience, and that therefore, race is a factor that may be considered in college admissions. That conclusion had first beenreached by Justice Lewis Powell in the Bakke case in 1978 and was reaffirmed in an opinion by Justice O’Connor in Grutter v. Bollinger in 2003. The Court also accepted—and applied—the rule that any program using race as a criterion is subject to “strict scrutiny” and must be “narrowly tailored.”  In this case, the Court held that the scrutiny afforded by the lower courts had given too much deference to the assessment of the University and had not been sufficiently strict. The case was remanded to the lower courts to reconsider whether the program could survive a scrutiny that was truly strict. The most notable aspect of the decision may be the fact that Justice Kennedy’s opinion for the Court was joined by six other Justices, (with Justice Ginsburg dissenting and Justice Kagan not participating). Reactions to the decision were predictable. Liberals were disappointed at the vigorous application of strict scrutiny, but greatly relieved that the Court had not barred any consideration of race. Conversely, conservatives approved the application of strict scrutiny but many would  have preferred racial factors to have been ruled out entirely.

Many conservatives  adhere to the view expressed by Chief Justice Roberts, in a 2007 case involving racial preference in public schools, that the matter is not complicated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”   Justice Kennedy, however, saw it differently. While he joined Roberts and the other conservatives in finding the school programs in that case unacceptable, he wrote an important and limiting concurrence. In that opinion, he observed that Roberts’s rigid formulation was “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.”  It was the same balanced perspective that Kennedy would apply in Fisher. As a matter of legal analysis, Kennedy’s position is well-grounded in the Court’s precedents and is likely to remain the controlling standard for the foreseeable future. From a purely political standpoint, Kennedy’s centrist view seems more sustainable and more constructive than alternatives urged by voices on either left or right.

Future exploration of the diversity issue in the courts and in public debate is likely to be influenced by two factors. First, beyond the pedagogical merits appraised by Justice Powell in 1978, diversity is now the Zeitgeist of higher education. Typing into Google the name of almost any college or university and “diversity” will produce an essay proclaiming the institution’s commitment to diversity. Of course, some commitments are stronger and more successful than others, but there can be little doubt that schools are, and will remain, far more diverse than when Bakke was decided. The change in the make-up of student bodies appropriately reflects the changing composition of the general population. Thus, however the Supreme Court may rule, it is almost certain that, one way or another, campus diversity is here to stay.

Second, there has been growing recognition that racial background is not the only, and perhaps not the most important, aspect of diversity. Because of constitutional constraints on achieving racial diversity directly, some schools have viewed an emphasis on economic diversity as something of a surrogate for race, as well as a quality to be valued in its own right. But economic diversity has its own challenges. As a fiscal matter, of course, money must be provided for scholarships and loans. But the challenge may be educational as well. Some critics of racial preference in admissions, most prominently Justice Thomas, have cited research indicating that such preferences may lead to “mismatches” in which students are harmed when they are admitted to schools for which they are not well qualified. By the same token, there is a danger of mismatches if schools adopt more flexible admissions standards in pursuit of economic diversity. Indeed, it is pertinent to note that according to recent studies, income differences produce even greater differences in academic achievement than racial differences. Writing in The New York Times Magazine, Stanford University’s Sean F. Reardon argued that income disparity had serious and growing effects on educational performance that crossed racial lines:

“The widening income disparity in academic achievement is not a result of widening racial gaps in achievement, either. The achievement gaps between blacks and whites, and Hispanic and non-Hispanic whites have been narrowing slowly over the last two decades, trends that actually keep the yawning gap between higher- and lower-income students from getting even wider.

While the research with respect to mismatches has been disputed, it cannot be dismissed. Mismatches can never be eliminated—the reach of some students will always exceed their grasp, and admissions offices are not infallible. Nevertheless, the potential for mismatches can be greatly diminished if we improve the quality of K-12 education for students of all racial backgrounds and all levels of academic ability. One step in that direction may be the Common Core State Standards discussed in Blog No. 3, but much more is needed–especially for students from homes where the educational environment is meager. If we can successfully reform K-12 education, critical masses of minority students should occur naturally and without relying on manipulative formulas.

We Republicans think of ourselves as the party of opportunity, as distinguished from the Democrats whom we like to charge with being more focused on equality of result than equality of opportunity. Fair enough. But the fact is that we often spend too much time and energy criticizing measures designed to provide equality (or lessen inequality) of result and not enough in seeking creative ways to improve the quality of opportunity. RINOs, we should be leading that charge and education is a good place to start.

***

Part II of this Blog will deal with the Supreme Court decision with respect to the Voting Rights Act and the challenge it presents to Congress.