7/24/2019 End Near for College Admissions Based on Race?
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John Eastman: End near for college admissions based on race?
It took eight months after oral argument last October for the
Supreme Court to render its decisionMonday in Fisher v. University
of Texas, addressing the constitutionality of that university's
race-based admissions policy. Although not quite as long as the
gestational period for a baby, that timetableis two to three times
longer than the usual turnaround time for a high-court
decision.
With all that time for deliberation, you would think the court
would have provided some much-neededclarity to the thorny problem
of race-based admissions practices that has been plaguing our law
sincethe court's Bakke decision 35 years ago. Alas, that was not
the case. But, perhaps in the tea leaves ofthe opinion, we can view
today's decision as the beginning of the end of officially
sanctioned
discrimination on the basis of race in college admissions.One
does have to feel for the 5th U.S. Circuit Court of Appeals,
however, which was unceremoniouslyreversed, even though it did its
darndest to faithfully apply the Supreme Court's incoherent 2003
rulingin the University of Michigan law school affirmative-action
case, Grutter v. Bollinger. That ruling bynow-retired Justice
Sandra Day O'Connor, purported to apply a "strict scrutiny"
standard, but, inreality, scrutinized Michigan's race-based
admissions policy with the great deference normally reservedfor the
much more forgiving "rational basis" review. So the 5th Circuit
took the court at its word, andlargely deferred to the University
of Texas.
Justice Kennedy's opinion in Monday's 7-1 decision in Fisher
held, essentially, "not so fast." Thedeference allowed in Grutter
applied only to the university's academic judgment that "diversity
is
essential to its educational mission." But that is as far as the
deference goes. Once a universityestablishes that its diversity
mission is consistent with strict scrutiny (i.e., it isn't actually
seeking rawracial balancing), the deference ends.
In other words, the university must also demonstrate that its
admissions process was designed toensure that each applicant is
evaluated as an individual and not in a way that makes race or
ethnicitythe determining factor, and that its diversity mission
could not be achieved by use of policies not basedon race. The 5th
Circuit erred, according to the high court, by holding that it was
sufficient that theUniversity acted in good faith.
So what does all that mean in plain English? Well, the court
stopped short of overruling Grutter, butit now seems more serious
about applying strict scrutiny than it was in Grutter. The message
to the
lower courts? Do what we say and not what we do. We said we were
applying strict scrutiny in Grutter,and even though the holding in
that case suggests we did otherwise, you should continue to
applystrict scrutiny to these cases. When revisiting Fisher, you
would be wise to recognize that we've movedbeyond Grutter and toss
UT's race-based admissions policy.
Let Abigail Fisher finally be judged by the merits of her
academic credentials and the content of hercharacter rather than
the lack of color in her skin. Only then can we finally achieve the
truly color-blind society promised by our nation's founding
charter.
