The Supreme Court’s ruling in Fisher v. University of Texas is a victory for opponents of affirmative action — but, alas, a heavily qualified one. The Court’s 7–1 decision (Justice Kagan recused herself, having worked on the case during her time in the Obama administration) to remand the case to the Fifth Circuit curtails judicial “deference” to admissions programs that include race as a criterion, as articulated by the Court’s decision in Grutter v. Bollinger (2003), but fails to address the central problem: namely, that Grutter sanctioned racial preferences that are in violation of the Civil Rights Act of 1964.
The Court initiated a confused line of jurisprudence in 1978, when it struck down racial quotas but recognized the consideration of an applicant’s race as a valid criterion for admission in Regents of the University of California v. Bakke. In Grutter, 25 years later, the Court accepted the use of race as a “plus factor,” provided there was also an “individualized, holistic review of each applicant’s file.” Universities that engage in such a practice, wrote then-Justice Sandra Day O’Connor in the Court’s 5–4 ruling, are subject to “strict scrutiny,” but are to be afforded “deference.”
The “degree of deference” and the scope of scrutiny are central to the ruling in Fisher. In Grutter the Court noted that “all government racial classifications must be analyzed by a reviewing court under strict scrutiny,” but acknowledged that the Court maintained a “tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”
That tradition, the majority writes in Fisher, “calls for deference to the University’s experience and expertise about its educational mission” — that is, to the school’s determination about what constitutes the educational benefits resulting from a diverse student body. It does not extend to the means the university may use to attain that diversity. According to the majority, the Fifth Circuit (and the district court below it) abdicated its responsibility when it failed to apply the burden of strict scrutiny to the workings of the University of Texas’s admissions program, not just the program’s goal (in this case an indefinable “critical mass” of minority students). Lower courts have the duty to ensure that, per Grutter, any use of race is “narrowly tailored” — that it is the only way to obtain the “educational benefits that flow from a diverse student body.” A school cannot institute racial preferences if there is another, colorblind way for it to obtain those benefits.
Fisher more sharply delimits the extent of judicial deference to universities, and its reminder that universities must meet the same standards (much more demanding ones, generally) as other government entities when practicing any sort of racial classification will likely mean more searching examinations into whether universities’ racial preferences are, in fact, “narrowly tailored.” Additionally, by strengthening the power of the judiciary to evaluate the means by which universities weigh race in admissions decisions, the Supreme Court has made it easier for plaintiffs to bring broader challenges against those universities. That could make race-based admissions a more costly prospect than most university administrators are willing to bear, and it could open the door to a direct challenge to Grutter.
When that time comes (sooner rather than later, we hope), the Court has a straightforward reason for striking down racial preferences as illegal: They violate the Civil Rights Act of 1964, which declared that no person “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.” On the long-acknowledged juridical principle that a court should settle a case on statutory rather than constitutional grounds whenever possible, the Supreme Court ought to reject the misreading of the Act that prevailed in Bakke (and has remained effective since) — that the Civil Rights Act was merely an attempt to enforce the Fourteenth Amendment — and restore to the Act its independence and its corresponding vigor. If, as the Civil Rights Act unambiguously states, there is to be no racial discrimination in institutions receiving federal aid, then racial preferences at public universities must go.
The Supreme Court’s sly misreading of the Civil Rights Act has encumbered the academic success of two generations of students, particularly minority students, and perpetuated tired racial tensions. The law on this issue is clear. The Supreme Court’s duty should be as well.