The Corner

Fisher: The Pessimistic View

Some conservatives are probably taking heart that the Court, by seven to one, reversed the lower court, which had upheld UT’s explicit use of racial preferences in its undergraduate admissions process. Abigail Fisher, whose test scores and grades would have gained her admission but for UT’s use of race, will get her chance to go to trial, which will prove extremely embarrassing for the university faculty and administrators who devise and run these immoral programs that classify people based on their skin color.

But put me down on the pessimistic side of the ledger. I think this is a setback for the cause of returning the nation to the color-blind principles of the Declaration of Independence and the Constitution. For a majority of the Court, it seems to me, continues to agree that “diversity” in higher education is a compelling government interest that survives the strictest of scrutiny by the courts. Until Grutter v. Bollinger, the 2003 case that blessed affirmative action in university admissions, the Court had found that the only time classifying by race could qualify as a compelling government interest was in wartime — and that was in the Japanese internment case, Korematsu. To compare diversity in higher education to the nation’s ability to defend itself in wartime showed how mistaken the Court was in Grutter.

But in Fisher, the Court declined to reconsider this terrible mistake. Instead, the Court returned the case for further proceedings because it wants the lower court to seriously examine whether any individual affirmative-action program was “narrowly tailored” to achieving the goal of racial diversity in higher education. This left the basic law of Grutter unchanged and only ensures that challenges to affirmative action will focus on the ways that schools measure an applicant’s skin color, but not on the unconstitutionality of using skin color at all. This is why, I am sure, liberals on the Court, such as justices Stephen Breyer and Sonia Sotomayor, joined the majority opinion. They headed off a case that should have resulted in the overruling of Grutter and in its place merely require the lower courts to be more diligent in examining the myriad ways that universities will use race in their application processes.

Liberal judges know that they have university administrators on their side. There is no value in the university setting that holds the allegiance of faculty more than affirmative action. Universities will sacrifice almost anything to protect and preserve racial preferences, even if it means lowering academic quality for all applicants or distorting the scholar’s mission to pursue truth. Given how university administrators and faculty will rewrite and bend the rules to maintain racial preferences, today’s Court decision will only trigger a painful ground war where both sides will fight over the mechanics of counting people by their skin color in university admissions.

This is another case, like the challenge to Obamacare last year, where conservatives and libertarians have erred in putting all their eggs in the judicial basket. Once again, the courts are not going to save us, only winning elections can.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.


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