Center for Equal Opportunity

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Mon12182017

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Two Wins for CEO in the Supreme Court!

Last week the Supreme Court handed down decisions in Fisher v. University of Texas and Shelby County v. Holder.  The Center for Equal Opportunity helped write and file briefs in both cases, and in both cases the Court’s rulings vindicated our arguments, as discussed below.

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Lawyers on both sides of Fisher v. University of Texas at Austin are claiming victory, and there’s some logic to that: The big winners are lawyers generally. The takeaway from the Supreme Court’s ruling last week is that universities using racial preferences can expect more and tougher—stricter—scrutiny, to be hauled into court more frequently, and to have a harder time prevailing when they are.

 

In particular, the case is undeniably a loss for the University of Texas and for supporters of racial preferences in university admissions, because a court-of-appeals ruling that upheld such discrimination has been vacated and remanded. The Supreme Court said that strict scrutiny means strict scrutiny, and that what the court of appeals did was not strict enough.  The Court’s 2003 ruling in Grutter v. Bollinger had also been criticized as not being strict enough, and so last week’s decision amounts to a clarification of Grutter in that respect. The opponents of racial preferences are better off now than they were before the Supreme Court took the Fisher case.

On remand, the high court said the lower courts “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” For plaintiffs, this will mean challenging the extent to which considering race adds a benefit, when weighed against its inevitable costs. That is, if a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

The Court said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “`could promote the substantial interest about as well and at tolerable administrative expense.’”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. What are the benefits to using race, exactly—and how much, exactly, are those benefits of “diversity” enhanced by considering race, rather than by focusing just on nonracial characteristics like income or parents’ professions/educational level or geography or age or working experiences or whatever? As the court noted, quoting from one of its earlier decisions, “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”

In addition, how much net benefit is left after a college subtracts the undeniable, myriad, and heavy costs of using race in admissions?

And what are those costs? So glad you asked: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African-Americans and Latinos with institutions, setting them up for failure; it fosters a victim mind-set, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the college and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African-Americans and Latinos are academically uncompetitive; and it gets states and colleges involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership—an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

From now on, colleges must document the benefits and rebut those costs. And, in the meantime, others should ask the University of Texas’ president, Bill Powers, “Mr. Powers, just how much of the taxpayers’ money from the people of Texas are you willing to spend in litigation to justify your colleges’ racial discrimination against the people of Texas, among others?”

In short, the struggle continues against racial preferences, with another Supreme Court decision last week that should be helpful to those of us challenging them. And I should add that not only the ruling but also the run-up to the ruling — in which it became clear how increasingly unpopular and discredited racial preferences in admissions are, even by liberals who had once supported them — will result in some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination. At least, I hope so.

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Shelby County v. Holder was another good decision. It wisely struck down a section of the Voting Rights Act that singled out some states as needing special permission from the federal government whenever they wanted to change any practice related to voting.

That’s an eminently sensible ruling because, as the Court carefully explained, the formula used is based on "decades-old data and eradicated practices." Such a formula cannot justify treating some jurisdictions differently from others, especially when the extraordinarily intrusive preclearance process raises such serious federalism problems.

As the court stressed, "history did not end in 1965," and more recent evidence demonstrates beyond any doubt that "things have changed dramatically."

So, now what?

The rest of the Voting Rights Act and its ban on discriminatory practices remain intact. But even before the Shelby County decision came down, there were news stories that some members of Congress and special-interest lobbyists were preparing to seek legislation responding to an opinion like last week’s. Such legislation could take two approaches.

The Court ends its opinion by noting that "Congress may draft another formula based on current conditions." Congress can try to identify which states are so racist that they are on par with 1965 Mississippi, and can be trusted to hold elections only if Eric Holder is given special authority to supervise them. Good luck with that.

The other approach is even less convincing. It would simply use today's decision as an excuse for a liberal wish-list bill that has nothing to do with the provision at issue in today's decision. Many people, for example, have a partisan dislike for voter identification laws, and so a federal law might be proposed making them more difficult. But such a dubious proposal should be considered on its own merits, not tied disingenuously to the Court's decision.

The fact of the matter is that the principal use of preclearance has for years been to require covered jurisdictions to draw racially gerrymandered and segregated voting districts. The country will be well rid of this requirement. It is, after all, flatly at odds with the original ideals of the civil rights movement, which opposed race-based decision-making and segregation.

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You can listen to this podcast on the Federalist Society’s website, where I debate Professor Erwin Chemerinsky on these two cases.

The Center for Equal Opportunity is proud of the role it played in both cases — but you can see that the struggle for colorblind equal opportunity must continue:  in the courts and in Congress, and with the Executive Branch and in the court of public opinion.  You will find CEO in all arenas!