Most of the sturm and drang about discrimination for the past week or two has involved bitter disputes over recent Supreme Court decisions (Hobby Lobby and Wheaton College) that spared a few Christians from being thrown into the lion’s den of Obamacare’s contraceptive mandate. Now comes a rude reminder that the “Diversity” Vampire is still alive and kicking because the Court has so far refused to fire a silver bullet through its heart.
In June 2013 a 7-1 majority of the Court rejected the lower courts’ endorsement of the University of Texas’s preferential admissions policy, sending the case back down to the Fifth Circuit with instructions to apply “strict scrutiny” to the University’s claims. Both supporters and critics of race preferences were divided over whether Fisher left the preference glass half full or half empty — a number of good arguments for both views can be found on Scotusblog, here.
Yesterday (July 15) a Fifth Circuit panel, by a bitterly contested 2-1 vote, tipped the balance, at least temporarily, toward the preference pushers. Perhaps only temporarily, because Abigail Fisher and her lawyers have already indicated they will appeal, although it is not clear yet whether they will seek review by the entire Fifth Circuit en banc or go directly back to the Supreme Court. What critics of racial favoritism hope will be only a pothole or detour on the road to colorblind equality is unfortunate, but its acceptance of the University of Texas’s discrimination against Asians, whites, and indeed members of any unpreferred racial or ethnic groups should not be forgotten when we return, as we no doubt will, and soon, to today’s hot topic of how to treat the troublesome Christians.
The dissent by Judge Garza is impressive; the majority opinion by Judges Higginbotham and King is — I apologize for being so harshly critical — typical of pro-preference thought. It claims, for example, that an “emphasis on numbers” in affirmative action — now who emphasizes numbers? — “is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint.” Why doesn’t looking to race at all make the same assumption?
Without reference to numbers, discriminating (and undiscriminating) readers will want to know, how can an institution or its critics determine how much “diversity” is enough? Easy, the two majority judges declare: “Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race.” Now I’ve got it: “diversity” has no floor and no ceiling. Thanks, judges.