Justice Kennedy Should Read Richard Brodhead

The Supreme Court’s decision in Grutter operated on the basis of some unspoken assumptions. One was that regardless of how other applicants were affected, students admitted because of preferences benefited from the decision. Another was that universities could be trusted to handle issues of race fairly and efficiently, or at least more so than could the courts.

The first unspoken assumption no longer holds: various studies, some cited by my colleague Stuart Taylor in a Supreme Court brief he co-authored, another penned by a trio of Duke scholars, strongly suggested that minorities admitted through racial preferences are in some ways harmed.

The second unspoken assumption, meanwhile, made no sense to anyone with experience in contemporary higher education. But the assumption certainly can’t survive last week’s address by Duke president Richard Brodhead.

I analyzed the address and the reaction it generated on my Duke blog. But one section deserves greater focus. After sympathetically noting how some African-American students “took offense” at the paper penned by two Duke professors, Peter Arcidiacono and Kenneth Spenner; and Esteban Aucejo, a Duke graduate student–even though neither these students, not virtually any other of the paper’s critics, challenged the accuracy of the paper’s data–Brodhead bizarrely asserted, “Generalizations about academic choices by racial category can renew the primal insult of the world we are trying to leave behind–the implication that persons can be known through a group identity that associates them with inferior powers.”

This statement made almost no sense, especially coming from the president of a major research university, as Arcidiacono pointed out. For decades, social scientists have used data based on racial (or gender, or age, or educational achievement) categories. Brodhead appeared to be deeming this kind of social science unacceptable–at least if it yielded results on questions related to higher education that he and his supporters among the faculty deemed undesirable. The message to untenured faculty was undeniable: explore this kind of research and kiss your career at Duke good-bye.

Brodhead then continued, with the most remarkable line of the address: “A further insult was that the paper had been included in an amicus brief submitted by opponents of affirmative action urging the Supreme Court to hear the [Fisher v. University of Texas] case.”

To reiterate: a president of a major research university deemed it an “insult” that the research of some members of his faculty was cited in a Supreme Court brief. Fortunately, the Court didn’t consider receiving such data to be an “insult,” and it agreed to hear the case.

Fisher seems almost certain to be decided by a 5-4 vote. The Court’s four most conservative justices seem likely to side with Fisher. On the other side, two pro-preference justices (Ginsburg and Breyer) remain from Grutter; based on her opinion in Ricci, Justice Sotomayor is much more committed to preferences than was Justice Souter, and Justice Kagan has shown little indication that she would dissent from upholding the indefinite use of racial preferences.

But what of Justice Kennedy? In his concurring opinion in CLS v. Martinez, he seemed to display an idealized vision of an academy that no longer exists, a place where dissenting ideas are welcomed and where university administrators–such as Richard Brodhead–welcome faculty members who challenge the status quo on campus. Before giving carte blanche to universities to continue to discriminate on basis of race, Kennedy would be well-served to read Brodhead’s recent address, to get a sense of just how poorly today’s universities handle issues associated with racial preferences.

In Duke’s case, at least, the message from the top was clear: emotions of those easily-offended on campus matter more than data, and professors whose research challenges the status quo will receive a public rebuke from the president himself. For the Supreme Court to give such views any deference could be shameful.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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