Since then, Heriot and Mulder say, the court has not explained “why, alone among government instrumentalities, public colleges and universities should be exempt from the strong presumption against racially discriminatory laws and policies (or why, alone among industries, private colleges and universities should be exempt).” Research into schools’ practices shows that race-based admissions are the product not of empirical educational research but “of political winds from both inside and outside each institution,” and are intended to keep campus peace and attract funds.
The authors correctly say, “The quality of a college education is a difficult thing to judge, especially in the short run,” so education is “prone to fads,” especially politically fashionable ones. Today’s fad — racial monomania — deepens the contradictory nature of the argument for the constitutionality of race-based admissions: Preferences supposedly improve the diversity pertinent to education — diversity of views — yet also dissolve stereotypes about race being a reliable indicator of mentalities.
Presenting “diversity” as an educational benefit for all students is academia’s way of justifying racial discrimination actually intended for aims that the Supreme Court has not said justify such discrimination — “social justice,” or compensation for past injuries. As Harvard law professor Randall Kennedy, who supports affirmative action, writes, many advocates of racial preferences in the name of diversity’s benefits (“only a contingent, pedagogical hypothesis”) “would rightly defend affirmative action even if social science demonstrated uncontrovertibly that diversity (or its absence) has no effect (or even a negative effect) on the learning environment.”