The Magazine

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.

In Fisher, Kennedy presented a version of O’Connor’s opinion in Grutter that reflected what he had said about it in his dissent in that case. In effect, he edited her opinion, toughening it up so as to make clear that it calls for truly strict scrutiny. This is where the Fifth Circuit failed, Kennedy wrote in Fisher, for in deferring to UT in both its “compelling interest” and “narrow-tailoring” inquiries, it did not use the “correct standard of strict scrutiny,” and thus its grant of summary judgment to Texas was “incorrect.” If only the Fifth Circuit had known which opinion in Grutter to enforce!

Kennedy set forth what “the correct standard” demands: “some but not complete” judicial deference to a university’s educational judgment about diversity, and no deference at all to—in fact, a rejection of—numerical definitions of diversity or “racial balancing” relabeled “racial diversity.” As for ostensible proofs that the means chosen by a school to attain diversity are narrowly tailored to that goal, courts must not defer to but closely examine them. And courts must probe whether it is actually “necessary” for a school to use race to obtain the educational benefits of diversity. Courts must “examine with care, and not defer to, a university’s consideration of workable race-neutral alternatives.” And a university must actually demonstrate “before turning to racial classifications .  .  . that [such] alternatives do not suffice.”

Kennedy also emphasized the need for courts to give “close analysis to the evidence of how [an admissions] process works in practice.” In other words, an empirical approach is necessary. If that is enforced in the lower courts, the mounting evidence that preferential treatment actually hurts its intended beneficiaries (through the phenomenon known as “mismatching,” for example) could undermine its basic premise, which is that it hurts only, if it hurts anyone at all, “individuals who are not members of the favored racial and ethnic groups,” as the Court said in Grutter.

Kennedy set aside the Fifth Circuit’s judgment for the University of Texas and sent the case back so that the university’s admissions process can be reviewed under “a correct analysis.” The appeals court will review the record in light of Grutter, as Kennedy has explained it, or order a trial if it decides more information is needed.

“Strict scrutiny,” wrote Kennedy at the close of his opinion in Fisher, “must not be strict in theory but feeble in fact.” Indeed it must not be. And in theory, it seems demanding enough to bring an end to the UT policy as well as similar ones used by other select schools, some of which, thanks to Fisher, may soon be visited with equal protection lawsuits.

But note well that Bill Powers, the president of the University of Texas at Austin, says that he’s “encouraged” by the ruling in Fisher, and that the university will continue to defend the current admissions policy, which he believes “fully satisfies” strict scrutiny. No one should be under the illusion that the preference supporters located throughout higher education will without a fight stop discriminating on the basis of race—though it would be a victory for morality and the Constitution if they did.

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