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Stop Discriminating

Jul 8, 2013, Vol. 18, No. 41 • By TERRY EASTLAND
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 In 2007, the Supreme Court ruled against using race to determine public school assignments. Chief Justice Roberts concluded his plurality opinion with this eloquent statement: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Supreme Court

Unfortunately, in the affirmative action case in the term just completed, a majority of the justices were unable to agree that institutions of higher education should stop discriminating on the basis of race in their admissions policies. Even so, the decision in Fisher v. University of Texas at Austin et al. has set the stage for the demise of race preferences in admissions and the discrimination they cause. Or so we would like to hope.

Abigail Fisher is a young woman who in 2008, in her senior year of high school in Sugar Land, Texas, applied unsuccessfully for admission to the university. Believing she had been discriminated against on account of an admissions policy that favors black and Hispanic applicants, she sued, invoking the constitutional guarantee of the equal protection of the laws, which different treatment on account of race—discrimination on the basis of race, as the chief justice would say—violates.

Both Fisher and the university moved for summary judgment, meaning they agreed on the basic facts and could proceed without a trial. The district court granted judgment for Texas, and the U.S. Court of Appeals for the Fifth Circuit affirmed.

The case under which the lower courts reviewed UT’s admissions policy was Grutter v. Bollinger, which sustained the use of race in admissions at the University of Michigan Law School. That decision was handed down 10 years ago, on June 23, 2003, and later that same day the University of Texas, constrained since 1996 by a Fifth Circuit decision prohibiting race preferences in admissions, announced that it would fashion a new admissions policy that would revive the use of race, in the terms set forth in Grutter.

Hence the question that Fisher and Texas asked the Supreme Court to decide was whether the Fifth Circuit’s ruling was consistent with Grutter. And the Court, with Justice Kennedy writing an opinion acceptable to no fewer than seven justices, held that it was not.

Grutter was a case in which the Court’s liberals and conservatives split four-to-four, with Justice O’Connor casting the deciding vote and writing the Court’s opinion. Well before Grutter, the Court had developed an approach for reviewing racial classifications of all kinds under which they must be held to the most exacting standard—strict scrutiny. Accordingly, for a given use of race to pass constitutional muster, it must be “narrowly tailored” to achieve a “compelling interest.” Grutter’s importance lay in its holding that obtaining the educational benefits of student body diversity is a compelling interest that can support the use of race in admissions.

Kennedy penned a sharp dissent in Grutter. He did not object to the diversity rationale for using race. His concern rather was that the Court had failed to provide “rigorous judicial review” of the law school’s policy, “with strict scrutiny as the controlling standard.” Kennedy cited instances of what he called the Court’s “perfunctory review,” and there certainly are passages in O’Connor’s opinion that are absurdly deferential. For example: “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” Are any schools using preferences—then or now—actually trying to terminate them? Kennedy concluded: “If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity.” In other words, the whole business is undone.

Over the past decade, Grutter, especially its approval of diversity as a compelling interest, has continued to draw criticism. Indeed, its validity was the real issue in Fisher. As it happened, Fisher’s lawyers decided not to press the Court to overrule Grutter (a favorite of O’Connor’s; she was in the audience at the Court when Fisher was announced). But throughout the oral argument the meaning of Grutter was probed and contested, the case referred to by name more than 80 times.

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