After Fisher, Race Preferences on Life Support

The truth is that the Court is deeply skeptical of race preferences, as the justices made clear in Fisher. Attorneys on our side should be bold and ask for Grutter to be overturned.

Today the Supreme Court rejected the Fifth Circuit’s decision to uphold the University of Texas’ race preferences program. Justice Anthony Kennedy penned the 7-1 majority opinion, concluding that the lower court had ignored the university’s obligation to take every possible measure to create a diverse campus before resorting to race preferences.

The decision in Fisher v. Texas is a clear reminder that in the landmark 2003 case Grutter v. Bollinger, the Supreme Court ruled that public universities could use race preferences only in very specific circumstances and only for a certain amount of time. Grutter is not the open ticket to use race preferences that its supporters are determined — even desperate — to spin it as.

I know what it’s like to feel the sting of discrimination and to wait anxiously for justice at the Supreme Court. Ten years ago, the Supreme Court ruled on cases involving a woman named Barbara Grutter and me. Barbara and I had sued the University of Michigan for its discriminatory racial policies. In Gratz v. Bollinger, the Supreme Court ruled in my favor, concluding that U-M had been using an unconstitutional racial quota system in its undergraduate admissions. But in Barbara’s case, Grutter v. Bollinger, the Court ruled that U-M’s law school could use race as a factor in its admissions process if it had exhausted all other efforts to achieve diversity.

The Fisher decision is a striking admonishment to universities that they must be working to end race-conscious policies and achieve diversity through race-neutral means. The University of Texas had shown it could achieve diversity through a race-neutral program where it automatically accepted the top 10% of Texas high school graduates, and therefore it had no justification for introducing race preferences.

If the attorneys for the plaintiff, Abigail Fisher, had asked for a broad ruling from the Court, they might have dealt such policies a fatal blow. Instead, the Court ruled narrowly because that was all it was asked to do. This narrow ruling was met with a giant sigh of relief from race preference advocates, who understand the legal, social, and political fragility of their policies. Now they are spinning the ruling as a win because the Court did not completely ban the use of race preferences in university admissions.

The truth is that the Court is deeply skeptical of race preferences, as the justices made clear in Fisher. Attorneys on our side should be bold and ask for Grutter to be overturned. Interestingly, Justice Scalia provided a brief concurring opinion in today’s ruling, stating that because the petitioner did not ask the Court to overrule Grutter, he joined the opinion of the Court in full.

Maybe the Court will overrule Grutter next time — and next time may not be too far off, because the Court has already accepted a case involving Michigan’s constitutional ban on race preferences. It should issue a ruling on that case sometime next year.

Today’s ruling concerned Abigail Fisher. Tomorrow someone else’s son or daughter will have his or her hopes and dreams dashed by state-sponsored discrimination. It shouldn’t be acceptable for state governments to discriminate against citizens on the basis of race. Soon, I hope, they won’t be able to.

 

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