Jul 8, 2013, Vol. 18, No. 41 • By TERRY EASTLAND
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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