On Friday, Students For Fair Admissions (SFFA) and UNC both filed for summary judgement in a case that accuses the school’s admissions practices of violating of the 14th Amendment and Title VI of the Civil Rights Act.
The facts of the affirmative action debate in the United States can be summed up quite simply: Universities may consider an applicant’s race. Universities must show that they are considering an applicant’s race to achieve the educational benefits of diversity. Universities must be very constrained in how they go about doing this — they must evaluate students as individuals, they must consider race-neutral alternatives and, most importantly, they must not use race as a dominant factor in admissions decisions.
We know that race must not be a determining factor in admissions, but exhibits presented in the plaintiff’s summary judgement brief are particularly damning. A UNC admissions officer noted, “If it's brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”
SFFA contends that UNC only sends promotional materials to white and Asian students who score above a 29 on the ACT while underrepresented minorities could score as low as 26 to be recruited. There is a vast discrepancy with the claims from expert witnesses in the defendant’s summary judgement brief about how many underrepresented minority students are admitted primarily on the basis of their race. Based on this discrepancy alone, I find it hard to imagine either party will be granted summary judgement as a matter of law.
In Grutter v. Bollinger, the Supreme Court made clear that “race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest.” The phrase “narrowly tailored” has come to be defined by a number of cases outlining the methods which are unacceptable for evaluating students by their race.
My real gripe is that questions set forth in this legal battle mean nothing to student activists here. Students aren’t particularly concerned with how "narrowly tailored" our admissions practices are, or even whether or not our pursuit of racial diversity passes "strict scrutiny." In their hearts, leftist students support affirmative action as a remedy for historical discrimination. That is why intervenors in this case sought to present evidence on “the history of segregation and discrimination at UNC-Chapel Hill and in North Carolina."
Plenty of people believe that racial diversity is a necessary component of a holistic education. I am not inclined to disagree. The problem is that these same people use affirmative action to satisfy their conception of racial justice. Despite what anyone tells you, the best legal minds can agree on one thing: the most we can do right now to fix racial injustice is to stop perpetuating it.
Underrepresented students who have a viable claim to a discrimination suit are the only ones with standing to benefit from affirmative action under the racial justice rubric. The law can’t recognize an unquantifiable concept like institutional racism. The only real question is whether administrators at UNC allowed their ideology to cloud their understanding of law and the Constitution.
