By William Murchison


An appalling sign of an appalling tendency to let the U. S. Supreme Court settle All Important Questions is the speculation over whether Justice Anthony J. Kennedy’s eventual successor will disrupt the high court’s jurisprudence on affirmative action–chiefly, affirmative action for college admission.

Why are we having this discussion to begin with? is the real question.  If racial discrimination violates the 14th Amendment, as the court has ruled with some frequency these past six decades, then there is something wrong with using race as a criterion for passing out not-easy-to-get academic admission tickets.   The court can’t quite spit out that sentence, in part due to Kennedy and former Justice Sandra Day O’Connor.

Kennedy was author of  the last two affirmative action decisions, both involving the University of Texas-Austin, both permitting on narrow grounds some consideration of race and ethnicity.   Will his retirement prompt rethinking of the idea that what the 14th amendment means, it means only up to a point?

It should, is one answer.  But over the dead bodies of university leaders to whom student diversity – as defined by themselves – is a larger matter than strict consideration of qualifications.  The idea is that  white applicants will get in somewhere and go on to establish themselves in life, whereas minority applicants, with steeper hills to climb, will benefit from a friendly push – in keeping with the democratic spirit, don’t you know?

Kennedy’s UT decisions, the last delivered in 2016, attempted – you might say attempted with a kindly outlook – to split the difference between advocates and opponents of affirmative action.  Difference-splitting, unfortunately, doesn’t get to the heart of what courts are supposed to do –provide guidance on how to handle all those important questions.

It used to be you didn’t make a federal case of who gets into college.  The civil rights revolution changed all that, rightly toppling legal barriers to the admission of non-whites without, however, showing what colleges, left on their own, were supposed to do about it.   Hence, the succession of cases testing the academic waters: a white University of Texas applicant, for instance, showing persuasively that but for affirmative action she would have gotten in when she knocked.   She had, in fact, to make way for a non-white applicant with a better (read:  more racially appropriate) claim, in the university’s judgment, to the seat both wanted.

OK – something obviously had to give.   But on the basis of race-comparison?   Wasn’t that to stand the 14th Amendment on its head?

The country’s escalating contentions over race need some adult analysis: not least at Fair Harvard, where Asian-Americans are claiming our No. One Prestige Institution unfairly circumscribes their numbers.  Which isn’t Justice Tony Kennedy’s sole fault, needless to say.   He might, at the same time, have tried a little harder.