In Fisher v. University of Texas, the Supreme Court considered UT’s admissions process, which uses applicants’ race as a factor. The Court held that the Constitution sets a high bar for government’s of race without violating the Fourteenth Amendment, and sent the case back down for another hearing.
So affirmative action was granted just a temporary reprieve, but the Court has racketed up the pressure on government’s use of race, as the two most conservative justices cast this case as a missed opportunity for the court, despite conservative lawyers’ best efforts, to restore a key constitutional promise.
This was a surprise with its 7-1 decision (only eight total because Justice Elena Kagan was recused). Both liberal Stephen Breyer and Sonia Sotomayor (both a racial minority and an Obama appointee) joined with the conservatives and moderate Justice Anthony Kennedy.
Quoting the Supreme Court’s foundational case on racial preferences from 1978 (the Bakke case), Kennedy wrote for the majority:
“The principle of equal protection admits no artificial line of a two-class theory that permits the recognition of special wards entitled to a degree of protection greater than that accorded others… when government decisions touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”
That last statement of narrow tailoring and compelling interests is called “strict scrutiny.” The majority acknowledged that previous cases held “the educational benefits that flow from a diverse student body” are one such compelling interest. Regarding educational benefits, courts are to recognize that a university’s academic mission is “a special concern of the First Amendment.”
Although these concepts from Bakke came from the stand-alone opinion of Justice Lewis Powell, later in the 2003 Grutter case a majority of the justices adopted these concepts as constitutional principles anchored in the Fourteenth Amendment.
Judicial scrutiny here must be strict because of the general principle that, as Kennedy quotes from yet another case, the Court held, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.”
“According to Grutter, a university’s educational judgment that such [classroom] diversity is essential to its educational mission is one to which we defer… pursu[ing] educational benefits that flow from student body diversity that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper… A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision… There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. But the parties here do not ask the Court to revisit that aspect of Grutter‘s holding.”
Later in the opinion, the majority set forth the second half of what strict scrutiny requires, and raises the possibility that UT’s program fails. Kennedy explained:
“Once the University has established that its goal of diversity is consistent with strict scrutiny, however … [the] University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On that point, the University receives no deference… it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
“Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity… The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity… strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
The majority then found fault with what the appeals court had done in this case. The U.S. Court of Appeals for the Fifth Circuit “presume[d] the University had acted in faith,” and chose not to “second-guess the merits” of the school’s approach to admissions.
When government discriminates on the basis of race, the Constitution instead requires courts to look with great skepticism, and force the government to prove why this discrimination was so necessary. So the Court vacated (i.e., threw out) the Fifth Circuit’s decision, and sent this case back down for the appeals court to apply the correct standard and take another look at UT’s program.
Justice Antonin Scalia wrote a separate concurrence, nothing that he continues to believe all racial preferences are unconstitutional, including in government school admissions. He noted that Fisher’s lawyers did not ask the Court to overrule this part of Grutter, though, so he joined Kennedy’s opinion. (It should also be noted that Fisher’s lawyers undoubtedly did not ask the Court to do so because they understood they did not have five votes to overrule Grutter.)
Justice Clarence Thomas wrote a stirring concurring opinion that was longer than Kennedy’s majority opinion. Scalia joined Thomas’ opinion in full. Thomas wrote that he too would overrule Grutter, “and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”
Thomas quoted the Fourteenth Amendment’s Equal Protection Clause, then added, “At the heart of this guarantee lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.”
Citing the test for strict scrutiny, Thomas declared:
“This most exacting standard has proven automatically fatal in almost every case. And rightly so. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that racial classifications ultimately have a destructive impact on the individual and our society. The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
Citing to the only couple times the Court had previously held that racial discrimination satisfied strict scrutiny in the past (including putting Japanese Americans in internment camps during World War II), Thomas continued:
“Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the educational benefits that flow from a diverse student body. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination.”
“I dissented from that part of the Court’s decision. I explained that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a pressing public necessity sufficient to satisfy strict scrutiny… As should be obvious, there is nothing pressing or necessary about obtaining whatever educational benefits may flow from racial diversity.”
All this notwithstanding, Scalia and Thomas joined Kennedy’s opinion. Only Justice Ruth Bader Ginsburg dissented, giving UT the benefit of the doubt and finding that strict scrutiny was satisfied in the case.
So now this matter returns to the Fifth Circuit for another round. Over the next year it should become clear whether Fisher’s case against UT will be resolved there, or if it might yet return to the Supreme Court–and to a final outcome that would be anyone’s guess.
Breitbart News legal columnist Ken Klukowski is a fellow at the American Civil Rights Union and on faculty at Liberty University School of Law.