Fast Action! On July 29, 2018, the Charleston Post and Courier ran a story entitled Affirmative Action Comes to a Quiet End at College of Charleston. It explained that in 2016, the College of Charleston stopped considering race as a factor in its admissions process. Yet in 2017 the proportion of non-white students had increased slightly to just shy of 20%. The proportion of African Americans specifically was 7.81%, down, but only slightly from 8.05% the previous year.

The backlash was evidently swift. On July 31, 2018, just two days later, the same newspaper ran a story entitled College of Charleston Resumes Affirmative Action After 2-Year Hiatus.

At this point, I can only guess the identities of the folks who must have thrown a fit when they saw the initial headline. State legislators? Local politicians? Faculty? Benefactors? Student groups? Whoever they were, they got their way: Race-preferential admissions policies were put back in place as quick as lightning.

But motives matter under the law.   What was the College of Charleston's motive for its sudden change?

It's unlikely this sudden change in policy was the result of a careful reconsideration of the pedagogical evidence concerning preferential treatment. (For some of that evidence, see my articles –Want to Be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances and A 'Dubious Expediency': How Race-Preferential Admissions Policies on Campus Hurt Minority Students.)

Instead, this story may be a good illustration of a point I've tried to make before: Admissions policy is more politics than pedagogy. In Grutter v. Bollinger (2003), Justice Sandra Day O'Connor, writing for the majority of five, deferred to the University of Michigan on the question whether achieving the pedagogical benefits of diversity is a compelling purpose. She did so on the ground that that judgments about pedagogy are best left to experts on pedagogy. This was nevertheless a highly controversial move on her part, since the whole point of the strict scrutiny standard, the standard she purported to be applying, is to refuse to defer in any way shape or manner to state agents engaged in race discrimination. Remember that in Brown v. Board of Education, education "experts" said that segregation was beneficial for students. No deference was accorded there. An even bigger problem is that admissions policies have never been left the experts on pedagogy. It has always been a political judgment. A good analogy is to legislation. Otto von Bismarck's comparison of legislation to sausage is a good one: Don't ask what went into it. It will only make you sick. Ditto for admissions policies.

State legislators, at least those dominated by Democrats—harangue universities about the need for diversity (while those dominated by Republicans may harangue about other things). Student groups demand more diversity (often even with threats of disruption if they don't get it). Government funding is sometimes explicitly conditioned on schools having at least a certain proportion of minority students.

In what O'Connor saw as an absence of evidence to the contrary, she was willing to assume that the University of Michigan Law School really did adopt race-preferential admissions in order to capture the pedagogical benefits of diversity for all students. But such a presumption is rebuttable--which leads me back to the College of Charleston. Why did it decide to return to race-preferential admissions?" What if a future court decides that the reason is (1) that's where the money is; or (2) the faculty felt strongly that white privilege will never be destroyed without race-preferential admissions; or (3) students demanded it, because they see it as reparations for past discrimination? If that's the case, even under Grutter, there can be no deference. The College would then need to demonstrate that its purpose for adopting race-preferential admissions is compelling. It has very little chance of being successful at that.

Maybe we'll learn something more about the College of Charleston's change of heart in the near future.


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