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The Long Arm of Bakke



I originally missed this Sigal Alon piece in The Nation on how the discourse of diversity helped kill affirmative action. She rightfully sees Bakke as laying the groundwork for the evisceration of race-based college admissions soon to be eliminated entirely in Fisher.

 The Bakke case is often looked upon as the landmark ruling for legitimizing race-conscious admissions policies in higher education. Justice Powell set the stage for what came to be known as the “diversity rationale” for race-conscious admissions policies—the argument that having a diverse student body in postsecondary institutions serves a compelling government interest because “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Race-conscious admissions, then, are permissible because, when narrowly tailored, they serve this substantial educational interest.

 The Bakke ruling shifted the rationale for affirmative action from reparation for past discrimination to promoting diversity. This, in essence, made the discourse about affirmative action race-neutral, in that it now ignores one of the key reasons for why we need to give an edge to minorities. Today the University of Texas, Austin, when defending the consideration of race and ethnicity in admission decisions, cannot say that this practice is needed because of persistent racial inequality; because minority students do not have the same life chances as white students; because there is extensive racial discrimination in the labor and housing markets; because students who study in poor high schools have less chances for learning and lower achievements; or because growing up in poverty impedes your cognitive development. The only argument at the disposal of UT Austin in defense of its admission practices is that it needs a diverse student body to enrich the educational experience of privileged white students.

Today, the fate of affirmative action rests solely on the Court’s endorsing diversity as a compelling societal interest. The oral arguments in Fisher this week demonstrate the fragility of this situation. Chief Justice Roberts questioned the educational benefits of racial diversity, asking, “What unique perspective does a minority student bring to a physics class?… I’m just wondering what the benefits of diversity are in that situation?”

Of course Roberts is too secure in his own privilege to see that in fact there is value in having a diverse classroom, even in physics. Science may indeed matter differently to people from different backgrounds. Shocking! Of course, had the Court rejected Bakke‘s case entirely, Texas would have had a lot sturdier legs to stand on than just diversity. Even if Powell was OK was diversity as a principle, he rejected the key civil rights element of affirmative action.

But then Powell was named to the Supreme Court by Greatest Liberal of All Time Richard Nixon so I don’t see the argument’s value. I’ll bet that conservacrat Barack Obama wouldn’t name defenders of affirmative action to the Supreme Court!

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