A few minutes into the Supreme Court’s oral argument in Fisher v. University of Texas — a case involving affirmative action — Justice Breyer impatiently blurted out “I want to know whether you [Fisher’s lawyer] are asking us to overrule Grutter,” referring to Grutter v. Bollinger, a 2003 decision which upheld University of Michigan Law School’s race-conscious admission program.
Breyer’s evident anxiety was mirrored by that of Justice Sotomayor, who bemoaned Fisher’s attempt to “gut” Grutter. The Grutter decision has gained a Roe-like status as a sacred cow among the nation’s professional diversity mongers. Veteran Supreme Court reporter Lyle Denniston noted that the very possibility of losing Grutter has raised the “fret level” among college deans. If colleges had to select all their students on merit, countless diversity czars and czarinas might lose their jobs.
Fisher’s lawyer, unfortunately, reassured Breyer that his client does not seek to overrule Grutter, but merely to limit it. But the honest answer — made bracingly clear by yesterday’s oral argument — is that Grutter is an incoherent mess that has got to go.
For any state institution to play favorites among racial groups is, on its face, a violation of the Equal Protection Clause of the Fourteenth Amendment. The Grutter majority got around that problem by holding that “diversity” is a “compelling” state interest that can trump equal protection. The Court also held that Michigan’s use of race as a “plus factor” was a “narrowly tailored” means for the university to achieve what it considered to be a “critical mass” of minority students. Following Grutter, UT implemented a system in which race could be used as a factor to boost an applicant’s chances of getting in.
The first problem with Grutter’s legacy is that the Court never defined “diversity,” making it difficult to judge whether the type of diversity sought by UT is really compelling. By almost any measure, UT was a pretty diverse place even before it started doling out racial preferences. Under Texas’s so-called Top 10% Law, any graduate of a Texas high school who is ranked in the top 10% of his class is guaranteed admission to UT. Enacted before Grutter, the Top 10% Law is race-neutral, but by reserving spots for all schools — inner city, rural, etc. — it has had the effect of raising black and Hispanic admissions.
But evidently, the Top 10% Law does not yield the right kind of minorities. The university’s lawyer, Gregory Garre, observed that “the minorities who are admitted [under the Top 10% Law] tend to come from segregated, racially-identifiable schools” — in other words, they’re poor. Diversity, therefore, requires not only students of different ethnicities, but students who graduated from racially-diverse high schools — which effectively means those affluent enough to live in racially-mixed neighborhoods, or to go to private school. Justice Alito summarized UT’s position succinctly: the Top 10% plan is “faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds.”
The perverse nature of affirmative action — a windfall for upper-middle class minorities — was reinforced by U.S. Solicitor General Donald Verrelli, who put in an appearance to support UT. According to Verrilli, the virtue of racial preferences is that they allow the university to “control” diversity so as to attract people like an “African American fencer” or others who “play against racial stereotypes” (who knew that African Americans are reputed to be lousy fencers?).
Even assuming that “diversity” can be defined, Grutter gives little guidance as to the concept of “critical mass.” In yesterday’s argument, Garre danced around critical mass, refusing even to give a ballpark percentage at which minority enrollment would hit critical mass. In light of Grutter, this was probably a good strategy: any numerical target begins to look like a quota, which is forbidden by Grutter.
And yet, as Chief Justice Roberts pointed out, it is difficult, if not impossible, for the Court to assess whether the University’s system is “narrowly tailored” unless it has some concrete idea of the ultimate goal of “critical mass.” Justice Sotomayor, who emerged as the most unhinged member of the Court’s diversity boosters (the Top 10% system without additional preferences amounts to “segregation,” she said), insisted that the measure of critical mass is whether minority students feel “isolated.” But that creates further problems: have we reached critical mass when 51 % of minority students no longer feel isolated? Or 75%? Or only when the quadrangle is full of hugging students?
And, by the way, how culturally sensitive is the whole shebang when, as Justice Alito pointed out, the UT system lumps all Asians together into a single ethnic group? Are we supposed to believe that a Korean student will feel less “isolated” just knowing that there’s a Malaysian on campus?
These and other thorny problems illustrate what happens when the Court substitutes the “Living Constitution” for the text. The black-and-white Equal Protection Clause provides that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” But the Grutter Court effectively declared that the text had evolved, based on such factors as “today’s increasingly global marketplace.” Indeed, so ephemeral was the Court’s reasoning, it put a twenty-five year sell-by date on its own holding. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further [diversity],” Justice O’Connor said for the Court.
By O’Connor’s timetable, we’re stuck with Grutter until 2028. Unless the Court takes this opportunity to overrule its misbegotten precedent, it’s going to be a long sixteen years.
— 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.