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The Ultimate Burden

Is it even possible for universities to do what the Supreme Court asks?

By William M. Chace | June 24, 2013


The June 24th ruling by the U.S. Supreme Court suggests that it is seeking from the University of Texas and all other universities and colleges that which has proved most elusive in the past: admissions processes that will achieve the goal of “diversity” while not employing race as a marker for that diversity. In its ruling, the members of the majority gave back to the District Court, the Court of Appeals, and the university an almost impossible task guided by “strict scrutiny.” That task imposes on the university, in the Court’s wording, “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

How, then, to arrive at “diversity,” which everyone recognizes as, in part, racial diversity, without employing race as a marker?

Other universities and colleges will be watching Texas as it seeks this formula—mysterious, difficult, and perhaps nonexistent. Mere assertions that schools can be trusted to do their best to achieve diversity will no longer pass muster. As the Court said, “the University’s good faith in its use of racial classifications” was not sufficient for the Court to affirm the practices at Texas. Nor will saying that “we practice holistic procedures” or that “we have no quotas” work anywhere else.

The burden on all universities, public and private, will be to show that, if they do at last turn to racial markers in admissions, they will have done so because no “race-neutral” methods, such as economic class or even something so crass as Zip Codes, can achieve the goal of diversity. Those institutions have more than their work cut out for them. They are being asked to find something—racial diversity—that they are apparently being forbidden to look for.

Click here to read William M. Chace’s essay “Affirmative Inaction,” first published in the Winter 2011 issue of the SCHOLAR.

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