On December 9, the Supreme Court heard oral arguments in Fisher v. University of Texas. That case challenges the constitutionality of the way the university employs racial preferences to obtain a student body that is, in the view of the administration, appropriately “diverse.” Students from some racial and ethnic groups are preferred over white and Asian students who, it is assumed, are not “diverse” and therefore add little or nothing to the educational environment.
When the case was before the Court previously, the majority held that the lower court (the Fifth Circuit) had failed to exercise “strict scrutiny” in evaluating the university’s admissions policy. That is, it hadn’t looked really carefully to see if the university was using racial preferences in a “narrowly tailored” way to achieve a “compelling governmental interest.”
Now, “strict scrutiny” has usually meant that a challenged law or policy will be invalidated – but not necessarily. The Court, after all, approved of the racially preferential admissions policy of the University of Michigan Law School in Grutter v. Bollinger. Five justices said that they had strictly scrutinized that policy of “holistic” evaluation of applicants and found it constitutionally acceptable.
Therefore, “strict scrutiny” of laws and policies that are said to violate the 14th Amendment rights of Americans to equal protection of the laws still leaves plenty of room for judges to uphold what they like and strike down what they dislike.
Observing that, Professor Jonathan Bean writes here “Heralded as an advanced yardstick in civil rights jurisprudence, this contrived [strict scrutiny] standard did Japanese Americans little good [in Korematsu v. U.S.]: the Court deferred to the government’s wisdom in interning citizens based on their race or national origin. If internment can pass ‘strict scrutiny,’ small wonder that the Court defers to the serpentine arguments of university officials who state that, by doling out race preferences, they are ‘really’ searching for the educational benefits of ‘diversity.”
It has become a “progressive” article of faith that it is beneficial for officials at “elite” universities to engage in social engineering to create student bodies that have enough “representatives” of all the groups that matter to them. So even if the Supreme Court demands strict scrutiny, justices who want this experiment to continue will easily find reasons they claim justify it.
Professor Bean asks, “Can we return to the classic liberal vision of principled, predictable, and colorblind law?” That ought to be the objective. It is what the Civil Rights movement was all about from the end of World War II until the 1970s, when equality of result began to displace equality under the law.
His suggested path is for opponents of racial preferences to rely on the clear language of the 1964 Civil Rights Act, which outlaws racial discrimination by any entity receiving federal funds.
We won’t know until next spring how the Court will rule in Fisher II, but the best guess is that it will find some “middle ground” – that is, leaving university officials to continue playing social engineer, but with some new restriction. What is certain, however, is that this issue will not go away. Maybe the next case should be grounded on the plain nondiscrimination language of the Civil Rights Act.
George Leef is director of research for the John William Pope Center for Higher Education Policy.