In her majority opinion in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor observed that 25 years had passed “since Justice Powell first approved the use of race to further an interest in student body diversity in the context of higher education” (in Regents of the University of California v. Bakke (1978)). Justice O’Connor went on to declare that she “expect[s] that 25 years from now, the use of racial preferences will no longer be necessary to further [that] interest.”
Well, nineteen years have passed since Grutter, and racial preferences are more entrenched than ever. Among the elite universities that embrace them, is there a single university president who will dare to suggest that they might be discarded?
As Chief Justice Roberts nicely put it, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” At conference on Friday, the Chief Justice will have another opportunity to put those words into action. The Court is scheduled to decide whether to grant the certiorari petition filed by Students for Fair Admissions in its lawsuit against Harvard College’s use of racial preferences that penalize Asian-American applicants in the admissions process.
Last June, in what many regarded as a delaying action, the Court invited the United States to express its views on the certiorari petition. The United States finally did so last month, and Students for Fair Admissions filed its response. Here is an excerpt from the introduction to its response:
The Government doesn’t accept that Grutter is a temporary evil—as Grutter itself said—or argue that now is not the time to overrule it. The Government proclaims that Grutter is “correct,” and seems to endorse Harvard’s view that universities should never stop sorting high schoolers by race. It also frets about upsetting universities’ “reliance” on the legality of race-based admissions generally, and Harvard’s program specifically. All while never once clearly stating that it believes Harvard is complying with the existing precedent, or explaining how universities could ever legitimately rely on Grutter.
Gone from the Government’s brief is the moral clarity that it offered in Brown. There the Government urged this Court to overrule Plessy v. Ferguson. It acknowledged that the end of separate-but-equal would upset reliance interests: Laws would be changed, schools closed, districts redrawn, teachers and students transferred, and transportation rerouted. The Government even noted that segregationist policies were adopted “upon the assumption, supported by previous declarations of this Court, that they were consistent with the requirements of the Fourteenth Amendment.”
The Government stood firm in Brown. It insisted that change was required because, in a country that professes “all men are created equal,” each person must be treated “as an American, and not as a member of a particular group classified on the basis of race.” “The rule of stare decisis,” the Government declared, must give way to “the fundamental principle that all Americans, whatever their race or color, stand equal and alike before the law.” Presaging this case, the Government added that no neutral principle of law “could support a constitutional distinction between universities on the one hand, and public elementary or high schools on the other.”
Like Plessy, Grutter is wrong, immoral, and unpersuasive, and has not aged well. Nor is it followed by Harvard or other universities. This Court should grant certiorari to reexamine Grutter and the admissions process that Grutter held up as a model. Because Harvard is where it all began, this case is not a “poor vehicle for reconsidering Grutter.” It is the perfect vehicle. As the Government concluded its brief in Brown, “‘We know the way. We only need the Will.’”
See also Roger Clegg’s “Take the Harvard Case.”