Here at the Center for Equal Opportunity we followed as we usually do this year’s March Madness, which meant keeping up with Texas Tech’s excellent basketball team, which battled into the Final Four and then into Overtime in the championship game before losing to Virginia.
Texas Tech also won our attention for its worthy decision to end the use of race in admissions, a position we had urged the university to take some years ago, and which the Trump administration has pressed through the Education Department’s Office for Civil Rights. Even Justice O’Connor has been sympathetic to ending affirmative action programs. In Grutter v. Bollinger, the 2003 case upholding the racially discriminatory admissions programs at the University of Michigan Law School, O’Connor said that such programs should reach a point of termination. Texas Tech’s have.
Still, too few schools have been willing to end their preference programs, despite the evidence beckoning them to to so. Maybe Tech’s approach to ending race-based admissions will serve as an example to other schools using race to select their student bodies.
Speaking of the Grutter case, Justice Thomas wrote a dissent that remains compelling, worth repairing to if the Supreme Court reconsiders Grutter, as it may in the next year or two. Herewith some thoughts and observations about Thomas’s work in Grutter.
At the top of his opinion Thomas makes clear that “racial discrimination should be subjected to strict scrutiny.” That’s the most demanding test there is for the constitutionality of a challenged action. Note that in this short sentence the Justice uses the term “racial discrimination” and not the more common (in this area of law) “racial classifications.” Indeed, by my count Thomas uses the former 40 times and the latter 10. Also, there are 8 uses of “use of race.” To my surprise, there are no references to “racial preferences.” For Thomas, there seem to be no important distinctions in meaning among the terms he does use. Racial discrimination is the invariable issue, and he won’t back away from speaking its name.
Thomas discusses the strict scrutiny standard that dates from the Japanese Relocation Cases, first enunciated late during World War II. Said the Court: “Pressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” The standard of “pressing public necessity” was new to me. Thomas helpfully points out that the standard has more often been termed a “compelling governmental interest”—which is how I’ve known it. Thus, government must have an interest that is compelling and constitutional, and endorsed by the Court, if it is to be pursued.
By the time Grutter reached the Court, according to Thomas, only twice had a majority of justices validated sets of circumstances that could have justified racial discrimination by state actors. Those circumstances involved national security matters and government efforts to remedy past discrimination for which it is responsible. Grutter validated a third set of such circumstances—the pursuit of student body diversity and the educational benefits said to flow from them. Thomas could not agree that student body diversity was a compelling interest much less a pressing public necessity (11 mentions!). This is the issue that could return to the Court.
In his dissent, Thomas also takes seriously the notion that in racial admissions cases like Grutter the interest asserted needs to be precisely defined before it can be determined whether that interest is so compelling or pressing as to justify racial discrimination. He contends that there really are two parts to the interest in the case —“diversity” and “educational benefits”—and that they have different functions. Thus, diversity “is the mechanism by which the law school obtains educational benefits, not an end in itself.” The benefits constitute the end. Thomas says of the school that its leaders apparently believe that only a racially mixed student body can produce the desired benefits. “How, then,” he asks, “is the law school’s interest in these allegedly unique educational ‘benefits’ not simply the forbidden interest in ‘racial balancing’ that the majority expressly rejects?”
How, then, indeed. I’ll be writing more about these matters in future newsletters, so stay tuned—especially during March madness and other maddening games.
