Supremes eyeing campus protests prior to Fisher v U. Texas?

Back in June we looked at the case of Fisher v. University of Texas, where Abigail Fisher took UT to court for denying her admission in favor of a minority student with presumably lesser grades and qualifications. This case has already had one pass at the Supreme Court, but it was kicked back to the state level to see if they could resolve their differences when it comes to racial preferences in school admissions. They didn’t manage to settle the issue so the Supremes will be taking the question up again next week.

The Justices don’t live in a vacuum (as nice as that might be in theory) and Adam Liptak at the New York Times finds himself wondering if they are being influenced in this matter by all the media coverage of protests and racial unrest on the nation’s campuses.

The tense atmosphere on campuses may alter the legal dynamic when the case is argued on Dec. 9. “It’s quite possible,” said Michael C. Dorf, a law professor at Cornell, “that the way the court frames the discussion will be colored by the justices’ views of the campus protests.” …

The protests call for a new examination of the legacy of racism in the United States. But the Supreme Court’s precedents have rejected affirmative action at colleges and universities as a remedy for past wrongs. They permit only a single justification for race-conscious admissions plans: creating educational diversity so that students of different backgrounds can learn from each other…

“African-American students are telling us in no uncertain terms why diversity on campus is important,” said Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund Inc., which filed a brief urging the Supreme Court to sustain the University of Texas’ race-conscious admissions plan. “They are describing their own marginalization.”

Everyone is focused on Justice Kennedy who has never voted to uphold an affirmative action program during his time on the bench. As Liptak notes, when the case was first considered it was Kennedy who rejected the idea of absolute race-based quotas for admissions, but he left the door open to considering the race of applicants as a “plus factor to foster values beyond race alone, including enhanced classroom dialogue.”

My Capitalist/Libertarian hind brain recoils at the idea of any sort of “quotas” for admissions, be they racial, gender based, religious or otherwise. In an ideal world where universities received no federal funding and operated as a meritocracy, the applicants with the best school grades, extra-curricular activities and achievements would be selected without the admissions office even knowing the demographic pigeonholes the students fit into. Colleges which consistently produce graduates who are the best educated and prepared for life and who go on to successful, professional careers will thrive by attracting the best candidates. Sadly, once you take government money the nose of the camel is well and truly under the edge of the tent and we wind up with the situation we’re saddled with today.

But should the ability of the Justices to watch the evening news and see the unrest roiling the nation’s campuses today even come into consideration when they hear the arguments in Fisher v. University of Texas next week? While I’d like to think that they are examining the rules based on nothing but the Constitution, that’s not terribly realistic. They are, after all, human beings like the rest of us. But what lesson will Kennedy and company take from these news reports? I suppose they might hear the complaints of minority students and be swayed to think their ranks need to be bolstered even if the admissions process then becomes even more unfair for applicants who fail to have the correct amount of skin pigmentation to qualify for a “bonus.” But on the other side of the coin, there is the question of free speech.

“I cannot help but think that even a subconscious link in Kennedy’s mind between blacks on campus and the suppression of speech — justified or not, and I do not think it is justified — will hurt U.T.,” said Richard O. Lempert, a law professor at the University of Michigan who filed a brief supporting the University of Texas.

The appeal of an argument in favor of promoting vigorous debate of different ideas and the protection of free speech has obvious appeal. But it once again comes with a lingering, nagging doubt when I read those words. It’s hard to hear the concept framed that way without asking myself, what’s the alternative? Are we saying that it would be better to have fewer minority students on campus just to avoid having them shut down dissent against their positions and complaints? That flies in the face of the meritocracy concept as well.

There is a huge problem on our campuses, obviously, because administrators are being given the heave ho to appease a small, but very vocal minority of students and dissenting opinions are being immediately decried as racism in an attempt to silence them. But I don’t think that’s a problem that the Supreme Court can fix. This can only be addressed by school administrators who decide to act like the adults in the room and crack down on disruptions to the fundamental mission of the universities.. education. With that in mind, I would hope that the court finds a way to simply ignore the protests which are all over the news and stick to what they ostensibly know best; the law. Preferences in admissions based on anything other than achievement are simply wrong and they should rule as such.

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