Fisher: The Court Dodges the Big Issue

by Adam Freedman

In today’s ruling in Fisher v. University of Texas, affirmative action suffered a tactical setback, but it gained a strategic victory: The Court refused to dismantle the basic legal theory that allows state universities to discriminate on the basis of race. The nation’s collegiate diversity police remain safe in their sinecures. 

At issue was a program that gives certain racial minorities an extra boost in their application to University of Texas. That program, incidentally, supplements a racially-neutral policy that requires UT to offer admissions to all Texas high-school students in the top ten percent of their class — a policy that had substantially increased minority enrollment. 

Abigail Fisher, an unsuccessful white applicant to UT, challenged the program under the Fourteenth Amendment, which plainly proscribes government discrimination on the basis of race — with no exception for universities. But the Fifth Circuit Court of Appeals upheld the program based on the Supreme Court’s 2003 decision in Grutter v. Bollinger. Grutter held that educational “diversity” (never defined) is a compelling interest that justifies racial discrimination, provided the discriminatory program is “narrowly tailored.”

The Supreme Court held that the Fifth Circuit had not properly applied Grutter, because the Court extended too much “deference” to UT’s judgment. Certainly the Court is right that UT deserves no particular deference on the design of its affirmative-action program, but the Fisher decision is not exactly a profile in courage. The majority dodged the opportunity to overturn Grutter and the regime of state-sponsored discrimination that it spawned (for more on Grutter’s defects, see my earlier piece at NRO’s Bench Memos).

Justice Scalia put in a brief concurrence pointing out that Ms. Fisher did not ask the Court to overturn Grutter, and it fell to Clarence Thomas to articulate the case against Grutter. Thomas’s opinion is devastating, pointing out, for example, that Grutter is one of the very few instances in which the Court has blessed government discrimination — sharing the dubious honor with such cases as Korematsu v. United States — the decision that upheld FDR’s program of interning Japanese Americans during World War II. Thomas also meticulously explains how all of the supposedly “compelling” benefits of reverse-discrimination — school integrity, leadership opportunities for minorities, improved interracial relations — had been advanced by the advocates of old-fashioned segregation. Those arguments were rejected in Brown v. Board of Education and should have been rejected in Fisher.

The good news about Grutter is that the Court’s opinion contains its own expiration date: The majority predicted that its reasoning would apply for only 25 years. The bad news is that that expiration date is still fifteen years away.

— Adam Freedman covers legal affairs for Ricochet. His book, The Naked Constitution: What the Founders Said, and Why it Still Matters, was published by Broadside Books on October 9, 2012.

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