The U.S. Supreme Court posted on their web site on October 1, 2015 the "Granted & Noted List Cases for Argument In October Term 2015". As expected, it will reconsider Fisher v. University of Texas at Austin. The case is being closely watched by those on both sides of the issue, as SCOTUS has worked itself into a position to either rule on law or continue to legislate from the bench. The use of race in admissions strikes at the heart of affirmative action, or more precisely, racial segregation in education.

The Court finds itself in this imbroglio resulting from the Regents of the University of California v. Bakke , 438 U.S. 265 (1978). Justice Powell, writing for the majority, struck down the minority admissions policy forcing the University of California system to admit Bakke. Instead of stopping there, the Court played it safe, or so they thought, by allowing affirmative action under some circumstances without ruling what those circumstances were. Not satisfied that had mollified the political left, they also overturned the California Supreme Court’s decision that forbade the university to consider race in the admissions process. 

It was a landmark decision by the U.S. Supreme Court allowing activist college administrators to essentially modify existing labor law and apply affirmative action by race in college admissions. Even though the ruling was overturned when sent back to the lower courts, university administrators throughout America have since used the ruling to socially engineer universities to meet their progressive agenda.

As the Court, still trembling from its near miss with Bakke, moved ahead thinking they dodged the proverbial bullet, along comes Grutter v. Bollinger, 539 U.S. 306 (2003). This time Justice Sandra Day O’Connor presented the majority opinion with some level of gravitas as though this was the seminal decision on the matter; it would not be. With the now infamous statement that the discrimination must have a twenty-five-year durational limit she said: “I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider the planned duration of the remedy in determining whether a race-conscious program is constitutional.”

It appeared that the court had twenty-five years before they had to address the issue again, but along came Fischer v. University of Texas at Austin in 2014. The plantiff, Ms. Abigail Fischer, only asked for law to be followed and that the school not discriminate against her because of race. Ms. Fisher said, “I hope the justices will rule that U.T. is not allowed to treat undergraduate applicants differently because of their race or ethnicity.” This time the court simply kicked the can back to the lower courts and told them to look at it again. In what is arguably a statement the Court wishes it could take back, it said it would reconsider the case next session. True to their word it is on the docket for 2015/16, though no date yet to be heard.

This ongoing battle of political wills places American schools, and by extension potential college students, on a path to chaos and failure. Since Bakke, there has been a metaphorical asterisk beside the name of African-American students regardless of how genuinely deserving and intelligent they may be. The Court, like the Department of Education, continues to propagate and perpetuate the sociological fallacy that race has anything to do with cognitive capacity. There is no science to suggest that any of the ‘races’ as defined by the Federal government have any cognitive handicap. The reason is, there is no scientific rationale or evidence to support the construct of race. It is a sociological construct having no grounding in scientific fact regarding the ability to learn.

While SCOTUS fiddles trying to figure out what to do, Chancellor Nicholas Dirks of the University of California Berkeley, has taken it to a new level. He announced the newly implemented UC Berkeley African American Initiative. The initiative is a $20 million fund aimed at boosting recruitment of black undergrads, and at increasing the campus’s “...social, personal and academic support to current and future African American students.” Dirks noted, “The success of this initiative will depend on effective and ongoing collaboration among all of us here on the campus and, crucially, our alumni and friends, whose support will be essential if we are to make good on our aspirations.” While there is an all-out effort to get alumni to cough up the money, the chancellor is still swimming upstream against comments he made in last year in an email he sent to faculty and students suggesting they dilute their right of free speech in consideration of others. He wrote: “Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.” This is possibly one of the worst topics Dirks could have broached at UC-Berkele., In May 1969, in what became known as ‘Bloody Thursday.’ California State Troopers, Alameda County Sheriff’s deputies, UC-Berkeley police and the Army National Guard armed with fixed bayonets and helicopters spraying chemicals attacked protestors marching for the right to constitutionally guaranteed free speech. Thousands of Berkeley citizens and UC-Berkeley students were hospitalized with shotgun and bullet wound, bayonet punctures, and chemical burns from Army helicopters spraying gas. 

The legality of UC-Berkeley’s approach has come under scrutiny by a number of legal experts. One of those experts, Gail Heriot, University of San Diego law professor and expert on Proposition 209, who said; “If the initiative is as described in the university’s announcement, it is a straightforward violation of Proposition 209.” Heriot, an independent member of the U.S. Commission on Civil Rights and former civil rights counsel to the Senate Judiciary Committee continued; “The university tried to have Proposition 209 repealed... When it failed at that, it simply went ahead and instituted a program in violation of the law.”

American education continues to struggle with foolishness such as this when there are real problems to be addressed.

Discrimination by any name is the same. To make admission decisions by race in any manner is discrimination. To agree and accept the issue of racial prejudice in any manifestation in education is to accept that members of certain racial groups do not have the intellectual capacity to compete without preferences. Advocates for affirmative action are in telling students that because of their race they may not be accepted into some colleges because vacancies are being filled by a discriminatory preference plan. It is sending a message to potential African-American students implying that they do not measure up and need entitlements. It is further sending a message to students of other ‘races’ they are being punished for some undefined historical sin. Neither message is acceptable or correct. If the goal is to do away with discrimination in education, the first step is to do away with segregation in schools.

The Supreme Court of the United States has overreached, got it wrong, kicked the can, and just plain abdicated its responsibility regarding this issue. If they do not get it right this time, America will continue its downward slide in educational achievement and political fighting. Our children and America’s future are quite literally depending on the Court to get it right this time.

Larry Creech holds a BA and MA in Humanities and Liberal Studies from Georgetown University where he is defending his Doctoral dissertation in interdisciplinary studies.