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The Texas Diversity Wars

Will the Supreme Court step in?

Oct 31, 2011, Vol. 17, No. 07 • By TERRY EASTLAND
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But if Texas is right about classroom diversity, there is no reason why the university may not also “consider race” in assigning students to schools and colleges—thus enabling them to be in more classes of “participatory size,” where the educational benefits of diversity are supposed to best accrue. As Judge Garza wrote, “A university’s asserted interest in racial diversity could justify race-conscious policies .  .  . not merely in the student body generally, but major by major and classroom by classroom.” An obvious question here is how such employment of race in sorting students might ever end. Garza was skeptical that there was any basis on which it could end, writing that his court’s decision would “in practice, allow for race-based preferences in seeming perpetuity.”

Of course, it is by no means certain that the Supreme Court will take Fisher. The case isn’t about a split in the federal circuit courts. Nor is it about a conflict among state supreme courts over the meaning of a federal law. Nor is it about a federal law that was struck down by the lower courts.

On the other hand, there is reason to think that the Court might decide to review the case. Consider that at the end of her opinion in Grutter Justice O’Connor stated the majority’s expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” More than a third of that time has passed, surely enough for racial preferences to begin their demise. Why wouldn’t the Court want to take a case now to see whether this is happening?

And if the justices do decide to review Fisher? Given how the composition of the Court has changed since Grutter, a more judicially conservative majority may see Fisher as a constitutionally worrisome case about expanding racial preferences. It may have doubts about whether federal courts should be as deferential to institutions of higher education as Grutter allows them to be in their race-plussing admissions procedures. It may show less patience with the elusive meanings of such terms as “critical mass” and “underrepresentation,” not to mention “diversity” itself.

As for a statement of first principles, a majority will do no better than repair to what Justice Scalia wrote in concluding his partial dissent in Grutter: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

Terry Eastland is publisher of The Weekly Standard.

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