Yesterday, the Supreme Court upheld the University of Texas’s race-based admissions policy, which discriminates against white and Asian applicants. It did so in a 4-to-3 ruling that gullibly deferred to a university’s pretexts for using race, and ignored a number of the Supreme Court’s own past decisions in doing so.
Race-based policies are social engineering, as the President of the University of Texas, Bill Powers, proudly proclaimed in 2014: “Opponents accuse defenders of race-conscious admissions of being in favor of ‘social engineering,’ to which I believe we should reply, ‘Guilty as charged.’”
They are also illegal, under any fair reading of the law. Using race in admissions violates the plain language of Title VI of the Civil Rights Act, which prohibits use of race by institutions that receive federal funds. That law declares that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
But the Supreme Court ruled in its 1978 Bakke decision that the Title VI statute does not actually mean what its plain language says, allowing even public universities to consider race in admissions (as long as they don’t do so in such an extreme way as to violate the Supreme Court’s interpretation of the Constitution). The Constitution’s equal protection clause was recognized in the Supreme Court’s Croson and Bakke decisions as forbidding the government from making decisions based on race unless the government can show that doing so is necessary to achieve a compelling government interest (the so-called "strict scrutiny" test).
But this test turned out not to be very strict at all in the Supreme Court’s 2003 Grutter decision. That ruling allowed the University of Michigan Law School to use large racial preferences in the name of promoting “diversity,” which the Supreme Court recognized as a compelling interest. Never mind that equating racial "diversity" with viewpoint diversity reflects the stereotyped assumption people think differently based on their race, and reinforces offensive racial stereotypes. State-mandated diversity training, for example, has been found to promote, rather than extinguish, prejudice.
Ironically, in another case decided the same day as the Grutter decision, the Supreme Court’s decision in Gratz v. Bollinger, the Court actually put some teeth into the strict scrutiny test, and recognized some limits on using race, in striking down the University of Michigan’s undergraduate admissions policy. The Gratz decision ruled that universities must prove their use of race is narrowly-tailored and that race is not used more than necessary to achieve a modicum of “diversity.” As the Supreme Court emphasized,
“To withstand our strict scrutiny analysis, respondents must demonstrate that the University’s use of race in its current admission program employs ‘narrowly tailored measures that further compelling governmental interests.’ … Because ‘[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,’ … our review of whether such requirements have been met must entail ‘a most searching examination.’”
So the Court is supposed to conduct a “searching examination” of the government’s rationale for using race. But in today’s Fisher decision, it did no such thing. Nor did it require that the University show it was using race as a “last resort,” as the Supreme Court later held was required under strict scrutiny, in a case involving race-based redistricting (see Bartlett v. Strickland (2009)).
Instead, it blindly deferred to the university, upholding its use of race based on trendy buzzwords rather than concrete improvements in learning outcomes. The Court conceded that under its own past precedents, “A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” It then upheld the use of race to promote vague “educational values” whose achievement was unproven (and which would probably not be measurable to begin with) as a “compelling government interest”:
“On the first page of its 2004 ‘Proposal to Consider Race and Ethnicity in Admissions,’ the University identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the ‘promot[ion of] cross-racial understanding,’ the preparation of a student body ‘for an increasingly diverse workforce and society,’ and the ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’”
To deny that these vague and subjective “educational values” are “amorphous” was either disingenuous or gullible on the part of the Court’s majority, which consisted of Justices Kennedy, Ginsburg, Breyer, and Sotomayor.
They found that “the University’s goal was” sufficiently “concrete” based on what was essentially conclusory boilerplate: (1) a 39-page proposal for using race which failed to explain how using race would achieve these goals, but did assert that “the use of race-neutral policies and programs had not been successful” at the university in fostering “cross-racial understanding” or “preparing students to function in an increasingly diverse workforce and society; and (2) “the depositions and affidavits from various admissions officers” all repeating this talking point.
This watered-down version of blind deference masquerading as strict scrutiny is disturbing, because strict scrutiny isn’t just the test used by courts in deciding whether to uphold or strike down the government’s use of race (under the Equal Protection Clause). It’s also the test used to uphold government restrictions on speech (under the First Amendment). Although the First Amendment’s text does not contain a “compelling interest” exception, the Supreme Court has allowed speech to be restricted by the government in the name of promoting a compelling interest, under a strict scrutiny test. So rulings like this one making a mockery of “strict scrutiny” could also threaten free speech rights in the future, since free speech is also subject to “strict scrutiny” limits.
The Supreme Court’s majority was disingenuous in refusing to address the statistical evidence showing the University of Texas’s discrimination against Asian-American applicants. That discrimination was both at odds with its “diversity” rationale for using race, and a sign that the University’s true goal was to achieve a de facto quota or proportional representation by race, which the Supreme Court’s own past precedents – Bakke and Gratz – said were not legitimate state interests, much less compelling ones. This is fatal, because an improper motivation for using race taints an otherwise valid affirmative-action program, under Supreme Court precedent. Diversity must have been UT’s “actual purpose” for using race, for such use of race to be constitutional under the Supreme Court’s past rulings. (See, e.g., Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).
As Justices Alito, Roberts, and Thomas noted in dissent, “Asian-American enrollees admitted to UT … have consistently higher average SAT scores than white enrollees,” who in turn have higher average scores than black and Hispanic applicants. This discrimination against Asians directly undercuts the University’s “diversity” argument, since the Asian percentage of the student body has always been lower than the Hispanic percentage, and if “diversity” were truly the University’s goal – as opposed to achieving a de facto quota – it would not be favoring Hispanics over Asians in admissions. As the Asian American Legal Foundation noted, the university’s policy reflected the untenable and racist assumption that “Asian Americans are not worth as much as Hispanics in promoting ‘cross-racial understanding,’ breaking down ‘racial stereotypes,’ and enabling students to ‘better understand persons of different races.’”
Rather than address the statistical reality of discrimination against Asian applicants, the Supreme Court majority instead cited a contrary assertion in an amicus brief filed by a progressive Asian group. That brief claimed that there was no discrimination against Asians (by which the brief meant, no more discrimination against Asians than whites). But arguments in amicus briefs are not evidence. By contrast, the Supreme Court’s own past rulings such as Teamsters v. United States (1977) recognize that such statistics can demonstrate intentional discrimination.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.