August 9, 2013

Last weekend an eye opening “>decision in Fisher v University of Texas affirmed the constitutionality of the goal of diversity in student admissions but it also laid out some fairly clear ground rules that effectively banned the use of racial/ethnic classifications in the admissions process (at least until “race neutral alternatives” are exhausted).  In other words, the Court allows that diversity can be a goal of the admissions process but identifying and admitting applicants by race is a last resort that will be subjected to the strictest scrutiny and can only be justified if all else fails.

In California, public universities must also grapple with the strictures of “>dissented from the majority decision and perceptively warned about the deception that would come if race and ethnicity were eliminated as legitimate, legal criteria. She knew her customers. (Although the events described in the Times’ piece antedate the Supreme Court decision in Fisher, the ban that existed in California was already a decade and a half old and the prevailing law).

Ginsburg wrote, “Those that candidly disclose their consideration of race [are] preferable to those that conceal it.” She explained what she meant, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.” She quoted her former colleague, Justice Souter, “the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’” As if she could divine the future and what the Starkman piece reveals, she warned that the “holistic” approach to admissions evaluation will result in “universities [who] cannot explicitly include race as a factor, many may ‘resort to camouflage’ to ‘maintain their minority enrollment.’”

The thrust of Starkman’s piece is that the “deliberate obfuscation” that Ginsburg warned about is taking place—-an admissions process that considers race and ethnicity yet hides the processes it adheres to. Code words, a wink and nod, pressure to “get with the program” are the kinds of not very subtle messages that most evaluators will absorb and admit whom the officials prefer—the supposedly “race neutral” alternatives are anything but.

A debate must be engaged in to see whether the admissions processes at the University of California are what the people of California and Supreme Court of the United States have mandated they should be—non-discriminatory, color blind, transparent and fair.

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