On Friday afternoon, the Obama administration’s Justice and Education Departments jointly issued their “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education.” It explicitly revokes the Bush administration’s more reasonable guidance in this area.
Nonetheless, conservatives can be delighted at what the Obama administration has done, for this reason: It shows the necessity of the Supreme Court’s granting review in Fisher v. University of Texas, a case that involves a challenge to that school’s use of racial and ethnic admission preferences. The Obama administration’s new interpretation of the Supreme Court’s case law — specifically, its 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger, involving preferential admissions at the University of Michigan — like the University of Texas’s, makes a mockery of the Constitution’s guarantee of equal protection of the laws and Title VI’s ban of discrimination based on race, color, and national origin. But those interpretations will stand unless the Court intervenes.
Bear in mind what the federal government is doing here: The whole tone of the new guidance is to offer encouragement, legal help, and “technical assistance” to schools that want to engage in racial and ethnic discrimination.
The Supreme Court has made clear that the use of racial and ethnic classifications and preferences is highly disfavored — while universities are permitted to use racial classifications if they conclude there are compelling educational benefits in doing so, this action triggers strict scrutiny and is presumptively illegal. Further, the Court deferred to a university’s determination that there were such compelling educational benefits; the federal government is entitled to no such deference, and it has no warrant to be pushing other universities in this direction. And yet here is the federal government going out of its way to facilitate such discrimination.
It would be as if the FBI were to offer eager encouragement to state and local police that want to engage in racial profiling without violating the law: Whether such discrimination is permissible in some cases or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal problems, but cheerful encouragement to the police to do as much of it as they can get away with?
But this is the situation we are stuck with unless the Supreme Court steps in.
There are other problems with the guidance, too. The timing of the document’s release is suspicious: It arrived just in time to be cited by the University of Texas in its brief to the Supreme Court in the Fisher case, due Wednesday. The university will now say there is no need for the Court to take the case, because the considered wisdom of the Executive Branch supports what it is doing.
As for the general legal analysis of the guidance, note for starters that the Gratz decision (in which the Court struck down a use of racial preferences) gets one short paragraph in the whole document, while Grutter (which upheld one) is cited repeatedly.
And there’s more. It is not made clear — as it should have been — that each university must itself make the case for compelling educational benefits from diversity, given that schools vary considerably in academic missions; the case to be made for diversity at a law school will be different from the case to be made for it at an engineering school. There is of course no suggestion in the guidance that, in determining whether that case has been made, schools need to consider the costs as well as well as the purported benefits of using racial and ethnic preferences. Those costs are numerous and considerable; George Will devoted a column last week to discussing two amicus briefs in the Fisher case that illuminate one of them, namely the fact that African-American students are set up for failure by being “mismatched” with particular schools.
And still more: The guidance suggests that the mechanical award of admission “points” based on race may be permissible after all, despite such a system’s being struck down in Gratz; the frequency of “periodic[] review” is never defined, letting schools leave in place indefinitely a discriminatory admissions system once it has been adopted; and it is suggested that, in addition to the (dubious) “diversity” justification recognized by the Court in Grutter, there may be still other “compelling interests justifying the consideration of race.”
I began with mentioning an (unintended) benefit of the guidance, and I will end with another: By saying, “It would be helpful [for universities] to maintain documents” describing how racially preferential programs came to be designed, the guidance will facilitate FOIA requests for such documents and subsequent legal challenges to such programs. The Center for Equal Opportunity and other anti-preference groups will take advantage of that.