Maryland Regrets the End of Racial Discrimination

The higher education community awaited a Supreme Court decision regarding campus admissions with great anxiety. After the Court issued Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College (SFFA) banning such racial discrimination, many campuses deplored it and sought ways to avoid its effect.

An official letter to the “Dear Terrapin Community” at the University of Maryland—College Park (UMD) illustrates this point. In its three pages, the letter does not cite any Constitutional or statutory language or discuss any argument the Court made. Instead, Maryland President Darryll J. Pines delivered this lament:

Needless to say, the decision is disappointing. Race has never been a determining factor here at the University of Maryland. Instead, it was one of 26 unique factors that we have considered in undergraduate admissions. It has been said that it is impossible to dismantle centuries of racism without acknowledging and considering race in the decisions we make today. However, we remain optimistic that our campus will continue to attract and retain a diverse student body… There is no getting around the fact that the role of race is changing in college admission, but the University of Maryland will move forward with a bolstered commitment and a singular voice.

There are several remarkable aspects in this campus statement.

First, it was issued on June 29, 2023, the day of the decision, suggesting that it had been prepared before anyone had read the Court’s actual analysis of precedents and its holdings.

Second, in addition to the signature of the President and the Senior Vice President and Provost, the letter was co-signed by ten other campus Vice Presidents and fifteen Deans. How many of them had read the decision before attaching their signatures? Did these administrators object to the requirements of the plain text of the Fourteenth Amendment that “no state should deny to any person equal protection of the laws” or to Title VI of the Civil Rights Act, which forbids “excluding any person on the ground of race, color or national origin of participation in or denied the benefit of, or be subjected to discrimination in any program or activity receiving Federal financial assistance?” UMD receives millions of dollars of federal funds every year. Did these university officials all disagree with the Court’s affirmation that “the Equal Protection Clause applies without any differences of race, color or nationality. It is universal in [its] application” (Yick Wo v. Hopkins)? Or did they all find fault with the Court’s reminder that “Acceptance of race-based state action is rare for a reason: [d]istinctions between citizens solely because of their ancestry are by their nature odious to a free people whose institutions are founded a basis of equality” (Rice v. Cayetano)?

President Pines and his administrative cohort seem to have objected to the Court’s blunt admonition in SFFA that “Eliminating discrimination means eliminating all of it.”

Third, the statement “Race has never been a determining factor here at the University of Maryland” is flatly false. The College Park campus was racially segregated before Brown vs Board of Education made such practices illegal in 1954. Then, the campus tried to compensate by offering some scholarships only to Black students. That practice was found unconstitutional in 1994 by a unanimous Fourth Circuit Court of Appeals in the case Podberesky v. Kirwan because the policy violated the Equal Protection Clause of the Fourteenth Amendment. That Court’s opinion analyzed the concept of “underrepresentation.” It found that the University could not establish the potential availability pool of black students related to the admissions criteria the University used.

Also, the assertion that race was never the “determining” factor in admissions cannot be true for decisions about some students. This disingenuous rationale was exactly the one used by the University of North Carolina and Harvard University. The Supreme Court was aware that for campuses with selective admission policies, acceptance is a zero-sum game. After extensive discovery, the Court confirmed that race was the tipping point in some campus admissions decisions, which were unconstitutional. It is virtually certain that none of the administrators who co-signed the Terrapin community letter know how many students were affected positively or negatively by the racial tip.

The Terrapin letter includes a defiant note that “it is impossible to dismantle centuries of racism without acknowledging and considering race in the decisions we make today.” Does that statement suggest that the University has no commitment now to being race-neutral in its many operations and will seek to hide its actual decision-making from judicial scrutiny?

Finally, the conclusion that the University will move forward with “a singular voice” suggests that people who approve of the Court’s decision outlawing racial discrimination in admissions will not be welcome on the College Park campus. Lauding the concept of “a singular voice” about complex legal questions is inconsistent with intellectual diversity or academic freedom, which should be the bedrock principle of a great university. Six months after SFFA, neither the Maryland Attorney General’s office nor the Maryland Board of Regents has publicly stated what campuses must do to comply with the decision.

Recently, American higher education has suffered substantial losses in public support. Hundreds of public and private employers have given up requiring college degrees for many jobs. Some college leaders have embarrassed themselves with their statements about public policy and have lost the confidence of the supporters they need. Legislators and governors have reined diversity, equity, and inclusion bureaucracies in several states. Polls show racial discrimination in admissions was unpopular among all groups. Administrative scorning of efforts by the Supreme Court to end racial discrimination in the cases that come before it is not a winning strategy for universities.

Photo by carmichaellibrary — Flickr