Jewish Journal

Divining the Supremes

by  David A. Lehrer

June 24, 2013 | 1:23 pm

The Supreme Court

This morning the US Supreme Court handed down its decision in the long-anticipated case of Fisher v University of Texas. The pundits are already opining up a storm with many of the analyses reflecting the author’s predilections more than the justices’ messages. In fact, there seems to be enough to offer both sides some solace, but the thrust of the majority’s logic suggests that the advocates of race conscious affirmative action will have a tough row to hoe from here on out.

If one likes race conscious affirmative action programs in university admissions, he/she can take solace in the fact that the Court did not overrule either the Bakke (1978) or the Grutter (2003) cases, both  long-standing precedents which allow race to be a factor in how universities decide whom to admit.

The fear among race conscious affirmative action supporters was that, in agreeing to take the University of Texas case within such a relatively short time (in the Supreme Court's temporal measure) after the Grutter case, the Court was looking to blaze a new trail away from affirmative action by explicitly barring race as a factor. To the extent that the seven justices did not rule out race as a factor and a majority clearly perceives achieving diversity in admissions as a “compelling state interest”, the proponents of race conscious admissions have to be breathing a sigh of relief.

But that sigh will be short-lived and followed by shortness of breath induced by how the Court has constrained the use of race in admissions at state-run universities. What the Court concedes in terms of race consciousness, it takes away in language that severely limits, if not practically bars, the use of race as a criterion.

While the Court, as noted above, allows that there is a “compelling state interest” in achieving diversity in admissions it requires that the methods used to achieve that interest must withstand “strict scrutiny”---the highest level of justification in the Court’s  equal protection jurisprudence. Being “reasonable” isn’t sufficient, the methods employed must be “permissible and substantial” and “necessary to the accomplishment of its purpose” (these parameters were part of existing precedents).

The kicker that must give affirmative action supporters heartburn is the Court’s explicit language that for a program to be considered “necessary to the accomplishment of its purpose” (i.e. diversity in admissions) there must be “no workable race neutral alternatives [that would] produce the educational benefits of diversity.” The university has the “ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Race based programs are a last resort after other, less onerous alternatives, prove themselves inadequate to the task.

This reiteration of policy that has been embedded in other opinions is a reminder that determinations of governmental benefits (such as university admissions) that include race are different than when other criteria are employed. In other words, to deny admission to an applicant because they live out of state or to offer admission to poor kids or gifted athletes is different than making those benefits contingent on immutable characteristics of birth (e.g. race). The Court recognizes that distinctions based on race are particularly incendiary and have been at the heart of America’s most profound division---government must proceed with caution.                                                                                                                                                                                                                     
Giving or denying benefits on the basis of race requires the highest level of scrutiny and justification, and is only permitted if nothing else works. A principle that has been lost on too many governmental programs in recent years that view considerations of race as indistinguishable from other criteria.

As this blog (and our op/eds) have pointed out previously, and the press has examined in some depth, there are race neutral programs that have the effect of achieving diversity---namely the socio-economically based affirmative action programs adopted by the University of California. The numbers of minorities admitted to the UC after race conscious admissions were banned (1996) exceed what existed under the race based programs. This is clearly a “race neutral alternative” that seems not only to “suffice” but to do better at achieving diversity than the race based admissions programs that preceded it.

Ironically, the University of California--- which gave birth to the Bakke case and the US Supreme Court decision in 1978 which legitimized race as a factor in university admissions--- may, by inadvertence, be providing the template for undoing over three decades of race based admissions that evolved from that decision.

In the lone dissent, Justice Ginsburg argued in favor of allowing explicit race based admissions but offered an analysis that many skeptics of the UC programs have long voiced--- that the the "race neutral" programs are really race based programs but in disguise; doing indirectly what they are banned from doing directly under the California Constitution. She wrote that “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” She opined that “I remain convinced, those that candidly disclose their consideration of race [are] preferable to those that conceal it.” 

Ginsburg’s dissent is an admonition to those who administer race neutral programs that if they are, in fact, a sham, the courts will likely look behind the veil of “neutrality” to see what is going on. So programs that miraculously admit precisely the same number of minorities in “race neutral” programs year after year will be scrutinized by the ostriches who will pulling their heads out of the ground to see what’s really happening.

The Fisher case seems like a reasonable holding that allows the ultimate goal of a diverse student body to remain while requiring that preferences on the basis of race can only be employed when all else fails and no race neutral alternative exists.

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