When journalists and commentators discuss the Fisher v. University of Texas case, they seem to grapple only with whether the University of Texas’s race-conscious admissions policy complies with the 2003 Grutter decision, which upheld a law school’s use of race in a 5-4 vote.
But they never discuss whether it complies with the restrictions on using race in many other Supreme Court decisions, such as another case decided the same day as the Grutter decision, the Supreme Court’s decision in Gratz v. Bollinger. Gratz laid down additional restrictions on using race, and struck down the University of Michigan’s undergraduate admissions policy. The Gratz decision says universities must prove their use of race is narrowly-tailored and used no more than necessary. This could be fatal to the University of Texas, which seems to assume those challenging its use of race bear the burden of proof on every issue, such as whether it could achieve a diverse class without using race, or without using race so heavily. The Gratz decision also is binding precedent, decided by a 6-3 vote (although only five justices joined in the majority opinion in that case).
As the Supreme Court emphasized in the Gratz decision,
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.’“
This passage contradicts the widespread and erroneous claim by supporters of race-conscious admissions that a college is entitled to deference on this question. (The Grutter case said colleges get deference on a different question — whether diversity is a compelling interest — but not on this question.)
The Grutter decision, which upheld a law school’s affirmative action policy, deviated from prior (and subsequent) Supreme Court rulings in giving deference to school officials’ judgment that “diversity” was a compelling interest, since such deference contradicts the whole purpose of the “strict scrutiny” standard of review that applies to all racial classifications, including “affirmative action” and racial”diversity” preferences. As the Supreme Court later observed, “deference is fundamentally at odds with our equal protection jurisprudence,” which puts “the burden on state actors to demonstrate that their race-based policies are justified.” Johnson v. California, 543 U.S. 499, 506 n.1 (2005). Deference to racial classifications is inappropriate even in contexts such as prisons “where officials traditionally exercise substantial discretion.” Id. at 512.
Moreover, the Supreme Court subsequently heightened the burden of proof in affirmative action cases by emphasizing race can be used only as a “last resort” (see Bartlett v. Strickland, 129 S.Ct. 1231, 1247 (2009)).
Finally, the 1978 Bakke decision, which colleges typically claim endorses their use of race (it struck down a racial quota at the University of California), actually contains four requirements for a college affirmative action policy to satisfy, not just one — that it not be a quota. If the courts were true to Bakke — flawed as that decision was — they would strike down the University of Texas’ policy. The colleges invariably cite Justice Powell’s opinion in that case and claim he said colleges can use race all they want as long as they don’t use quotas and consider non-racial factors in addition to race in their admissions decisions. This is a patent misreading of Justice Powell’s opinion. If he had only ruled out quotas, his opinion would have been much shorter. Justice Powell did not say colleges could use race however much they wanted as long as they did not use a quota, and he explicitly ruled out the use of race to promote various interests commonly used to justify racial “diversity” preferences, such as the claim greater racial diversity will improve “the delivery of . . . services to communities currently underserved.” He also rejected quotas not just as a means, but also proportional representation as an end, rejecting as an invalid interest the goal of having a college “assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” He also rejected the use of race to offset the “effects of ‘societal discrimination.’”
In practice, the use of race to promote “diversity” is based on racial stereotypes about people of different races and the stereotyped assumption people of different races think differently. Taken to its logical extreme, it leads to the proliferation of “diversity trainers” who promote offensive racial stereotypes. For example, Glenn Singleton, a wealthy “diversity” trainer, has claimed that “white talk” is “impersonal, intellectual, verbal” and “task-oriented,” while “color commentary” is “emotional.” If a white person said this, it would rightly be regarded as a ridiculous, racist stereotype that relegates black people to inferior status. California Superintendent Jack O’Connell, a white liberal, was publicly embarrassed, and called racist, after he repeated a remark Singleton shared with him that black people are loud. Singleton also embarrassed the Seattle Schools in a landmark Supreme Court case, in which the Supreme Court struck down the Seattle Schools’ use of race in student assignment in a 5-4 vote. CEI filed an amicus brief in that case, in support of the parents who challenged the unconstitutional use of race.
Commentary has focused on whether the University of Texas’ racial preferences in admissions violate the Constitution’s equal protection clause. Often overlooked is they violate the plain language of Title VI of the Civil Rights Act, 42 U.S.C. 2000d, which prohibits use of race by institutions that receive federal funds. Title VI provides 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.” Texas’ racial preferences also violate 42 U.S.C. 1981, which prohibits racial discrimination in contracts.