The United States Supreme Court has rendered an important decision on race-based admissions to colleges and universities which, at least indirectly, is relevant to Australia’s debate on the proposed entrenchment of The Voice in the Constitution and necessitates a reflection on Australia’s university admission policies.
On June 29, the Supreme Court decisively banned race-based admission processes. It decided that racial preferences in the admission of students are unconstitutional as it violates the equal protection clause of the 14th Amendment, according to which no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
Chief Justice, John Roberts, wrote that “the student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin.”
However, the U.S. Constitution thus requires society to be colour-blind, and burdens and benefits should not be distributed based on a group characteristic, such as race.
The American journey to a colour-blind society had a long and sometimes troubled history.
In an educational context, this history focused on the achievement of “diversity” in institutions of higher learning.
In two cases, Regents of the University of California v. Bakke and Grutter v. Bollinger, the Supreme Court had viewed the achievement of a “diverse” student body as a compelling state interest.
In the Bakke case, the Supreme Court opined that a “diverse” student body improves the educational experiences of all students. Justice Powell said that “the attainment of a diverse student body ... clearly is a constitutionally permissible goal of an institution of higher education” and that even “at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial.”
The American dispute focused on the question of whether “diversity” should be achieved simply by having a race-based admissions policy.
If race is treated as a group characteristic, then such a policy may well be functionally indistinguishable from a numerical racial quota, especially if educational institutions seek to have a “critical mass” of minority students.
The Voice Is a Race-Based PolicyI have argued before that, in Australia, The Voice proposal, if successful, will create a society where a person’s entitlements are determined by membership in a racial group. Several reasons support this view.
First, the distribution of societal benefits and burdens on the ground of a person’s race makes a mockery of reassurances to create a society where a person’s race is irrelevant.
Second, the proposed advisory body will consist of 24 members who may make “representations” to the parliament and executive on all laws affecting Indigenous Australians. It is expected that The Voice body will need to be consulted when proposing to adopt laws.
This “consultation” requirement raises the question of whether it must actually give advice. If so, and the adoption of legislation was delayed until The Voice provides its advice, it could effectively adopt the convenient device of not giving an opinion at all, thereby arrogating to itself a veto power and paralysing the machinery of government.
In such a case, The Voice would effectively function as a third chamber in addition to the House of Representatives and the Senate.
Third, the determination of the composition, functions, powers, and procedures of The Voice would require the parliament to draft detailed rules on establishing group membership.
This would lead to intractable problems associated with attempts to prove membership in a racial group.
Alternatively, if membership were to be determined by self-identification, then this would likely result in an over-inclusive extension of the concept of “Indigenous” Australians.
There is utter confusion as to who is to be regarded as “Indigenous,” how the members of The Voice will be chosen, and what the powers of that “advisory” body” will be.
Indeed, in Australia, “Aboriginality” seems to have developed into an amorphous, undefinable concept that has steadily been expanded to cover cultural traits that are different from the mainstream population.
Time for Australia to End Affirmative ActionThe U.S. Supreme Court decision is also hugely relevant for the Australian higher education sector.
In Australia, most universities administer schemes that offer priority entry for “Indigenous” students. Other programmes provide pathways for entry into undergraduate study programmes.
To that purpose, student administrations have designed forms that facilitate university admission of Aboriginal and/or Torres Strait Islander students.
By ticking the box, students become eligible for specialist Indigenous services, priority admission to universities, and Indigenous-specific scholarships, among other benefits.
In the United States, such schemes and programmes are covered by the Supreme Court’s decision and would be illegal as violating the equal protection clause of the Constitution.
Yet, in Australia, these programmes, the benefits of which are determined by a person’s membership in a racial group, fly under the radar and are firmly embedded in the practices of universities.
Although these programmes attract little criticism—a consequence of the servile nature of much of the Australian polity—they are nevertheless controversial benefits because they remain only available to members of preferred racial groups, thus violating the principle of “political equality.”
The message communicated by the United States Supreme Court decision is that “race,” taken as a group characteristic, should be an irrelevant factor in the distribution of burdens and benefits.
It should be heard in Australia and adopted for the purpose of advancing a free society where people are treated equally.
A free society implements the principle of “political equality”—a colour-blind society where burdens and benefits are distributed on the basis of individual characteristics, not group-based characteristics.
Indeed, Australia has a lot to learn from this decision of the American Supreme Court.