The opera ain’t over until the fat lady files the brief.
President Bush announced yesterday, in general terms, that his administration will be filing a brief today with the Supreme Court that argues against the constitutionality of the University of Michigan’s racially and ethnically biased admissions process. Following that, however, there was a confusing, semi-off-the-record discussion by a “senior administration official” on what the brief was going to say. That discussion was disturbing, and indicates that the opponents of racial and ethnic preferences should hold their applause for the Bush administration. In fact, they may want to get ready to boo.
Here’s the problem, and I’ll try to keep the lawyerese to a minimum: The Supreme Court’s case law makes clear that, when a government institution — like a state university — discriminates on the basis of race, that discrimination will be subjected to “strict scrutiny.” It can pass strict scrutiny only if it passes a two-pronged test. Number one, it must have a “compelling interest” — that is, a really good reason — for the discrimination. Number two, the use of race must be “narrowly tailored” to achieving that compelling interest.
It is clear from the president’s remarks and the subsequent discussion with the press that the Bush administration’s brief is going to say that the UM program fails the narrow tailoring test. What is not clear is what, if anything, the administration will say about whether UM has a compelling interest in using race in the first place.
UM claims that it has a compelling interest in achieving a student body that is racially diverse. Universities commonly rely on this “diversity rationale” today across the country. UM says it can prove from social-science evidence that such diversity is important because students learn so much more if they are in a racially diverse environment. This claim is very dubious, and is certainly too thin to justify something as divisive and unfair as racial discrimination.
The trouble is that, if the Court doesn’t address the compelling-interest issue, and instead rules only on the narrow-tailoring point, then nothing will change. Schools will make a few cosmetic changes in their programs, but continue to discriminate. We know this because that has been the whole sorry history of the 25 years following the Bakke decision.
If the Bush administration doesn’t take a stand on the compelling interest issue, then the Court might be reluctant to as well. The justices might want some reassurance that they won’t be the only ones standing up for a broader principle of nondiscrimination.
The Bush administration brief is apparently going to argue that racial preferences can’t be used to achieve diversity unless efforts have been made to achieve diversity in other ways — most prominently, by trying something like Texas’s “10 percent plan,” which was adopted after a federal court struck down the state’s use of admission preferences, and substituted instead a guarantee of admission to the top 10 percent of each high school’s graduating class. But the Court’s past decisions, and common sense, make clear that jiggling admission criteria in order to improve the chances of admission for students of one skin color — and, necessarily, hurting the chances for others — is discrimination, too. So the Bush brief’s approach is either implicitly endorsing a compelling interest in student-body diversity, or else it is asking the Court to ignore a lot of its earlier case law. The net result, either way, is to make it less likely for the Court actually to address and reject the diversity rationale.
It’s good that the administration brief at least has as its bottom line that UM’s program is unconstitutional. But the justices didn’t and don’t need help from the Bush administration in figuring out that what UM is doing is illegal. What they do need from the Bush administration is a pledge to stand with them on the broader issue. If the Bush administration’s brief doesn’t supply that support — if it doesn’t urge the Court to reject the diversity justification for discrimination — then it may turn out to do more harm than good.
The brief doesn’t have to be filed until 11:59 P.M. today, and I remember filing briefs in typescript that late when I worked in the Solicitor General’s office. The administration should take those extra hours and minutes to make sure that it does the right thing.