Fisher Argument Itself Could Fuel Campus Unrest, Stall Action on Demands

Scalia’s Statements About Blacks Who Are Not "Really Competent," and Should Go to Slower Schools, May Anger Already Aroused Protesting Black Students
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Washington - District of Columbia - US

WASHINGTON - Dec. 9, 2015 - PRLog -- WASHINGTON, D.C. (December 9, 2015): The Chronicle of Higher Education is reporting that ”The Supreme Court Could Fuel Campus Unrest in Ruling on Race in Admissions,” but even the oral arguments today could by themselves exacerbate heightened racial tensions already existing on campuses by encouraging colleges to stall addressing demands by black students, says public interest law professor John Banzhaf.

        Moreover, Justice Antonin Scalia’s remarks - that “Really competent blacks” would win admission without such considerations and those who didn’t might be better off at “slower track schools where they will do better.” [Washington Post] - could be read as insulting to the majority of black students.

        As a direct result of the uncertainties created by today’s arguments, and the very real possibility that a remand for an evidentiary hearing may cause much more delay in obtaining a final ruling, colleges may well stall on making any firm commitments with regard to minority admissions which they might not be able to fulfill, or to committing significant resources - such as to expensive new programs, black student unions, etc. - to benefit what might soon be a dwindling number of black students, suggests Banzhaf.

        For example, while the decision in Fisher presumably will not affect the legality of utilizing affirmative action selection procedures to facilitate the hiring of more black professors, there may be much less of a need for additional role models - one of the major arguments in favor of increasing the number of African American professors - if there are far fewer black students for them to mentor.

        Similarly, colleges may be reluctant to commit major resources to the establishment of new expensive programs in Black Studies, Critical Race Theory, etc. - programs which typically are chosen primarily by black students - if there may not be enough black students in the future to make them viable.

        Also, demands for separate so-called "safe spaces" on campus for African Americans, or similar arrangements, may seem premature or even unnecessary if there will not be enough black students in a few years to fill them.

        The recent spate of far reaching demands by black students seems to have been triggered by their successes at the U. of Missouri, and similar protests at Yale, Ithaca College, Amherst, Claremont McKenna College, Harvard, and other institutions of higher education.

        Although these recent successes may have triggered the new round of protests and demands at many other schools, or black students see an advantage is striking while the iron seems to be hot, another reason why black protests are spreading, and including such strident demands, may be that the black students also realize that a Fisher decision sharply curtailing affirmative action programs at many colleges might well undermine their bargaining power in the future, suggests Banzhaf.

        Thus, since there weren’t enough indications in oral argument to strongly suggest that the Court is unlikely to significantly curtail affirmative action admissions policies, colleges are likely to stall in dealing with many student demands, perhaps by token steps such as changing the names of buildings.

        By the same token, since a majority of the justices seemed very skeptical of affirmative action,  black students may press even harder to gain and consolidate whatever concessions they can.

        The uncertainty as to how the Court will ultimately rule, and even whether there will be significant delay to permit more hearings, may well increase the racial unrest already spreading to more and more colleges, and make it more difficult for them to respond to student demands, suggests Banzhaf.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418  @profbanzhaf

GW Law School
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