Several posts below I recommended a perceptive post on Sub Judice about the Michigan cases.
Now they’re at it again, and again the site deserves a visit. D replies to Plainsman, his co-blogger, in a refreshingly temperate (though still unpersuasive) manner, and Plainsman posts again — similarly thoughtful and temperate, with the added bonus of being persuasive.
One of the issues between them concerns the degree to which the admissions policies of universities are, or should be, protected from judicial interference by the academic freedom penumbra (my word here, not either of theirs) of the First Amendment. Universities, it is argued, should be allowed to pursue diversity as a legitimate, even compelling, academic interest. Here Plainsman graciously concedes that there may be something (but not much, he suggests) to this concern.
When they deviate from the usual emphasis on LSAT and grades, the admissions officers are not principally doing so to create an environment of wide-open intellectual exchange. Rather, they’re doing racial engineering. So there may indeed be a kind of First Amendment shield that protects universities from certain kinds of legal scrutiny in the pursuit of their intellectual mission (I am ill positioned to deny that there is, as an admirer of the First Amendment holding in Boy Scouts v. Dale). But that shield cannot be invoked to justify policies like Michigan Law’s. The facts are relevant to that conclusion.
If I may be allowed to butt into their polite internal argument, I would submit that more than facts are relevant here and that partisans of preferences who try to advance behind the shield of the First Amendment may be leaving their rear exposed. If the First Amendment’s regard for academic freedom is now thought to throw a mantle of protection over racially discriminatory policies in universities, then an awful lot of people who’ve never given a second (or, indeed, a first) thought to Bob Jones University v. United States, 461 U.S. 574 (1983), will have to scramble to explain why BJU shouldn’t have its tax exemption restored.
Even though the tax code provides for tax exemptions for “religious, charitable, or educational” organizations (emphasis added), the Supremes held that Bob Jones, though clearly both religious and educational, could not be regarded as chartiable because of its Biblically ordained (in its view) policy against interracial dating, and thus its tax exemption was revoked.
There is a difference between Bob Jones University’s discrimination and Michigan’s discrimination. Bob Jones is mean-spirited and bigoted while Michigan’s is righteous and pure.
I’m having a difficult time locating facts and data to support the concept that diversity is a legitimate, even compelling, academic interest.
Certainly enough time has passed to have allowed for the collection of such data — but all I can find is rhetoric.