The following contribution to our Fisher symposium comes from Gail Heriot, Professor of Law at the University of San Diego School of Law and a Member of the U.S. Commission on Civil Rights, and John Eastman, Professor of Law at Chapman University School of Law.

The tenth anniversary of Grutter v. Bollinger will soon be upon us.  In that five-to-four decision, the Court affirmed the authority of colleges and universities to discriminate in favor of African Americans and Hispanics in admissions, but expressed hope that race-preferential admissions would be unnecessary in the future.  Predictably, however, the decision simply emboldened higher education to ramp up these policies.

This Term – with Fisher v. University of Texas – the issue is back on the Court’s docket.

It is not easy to get the Supreme Court to overrule a recent precedent, even one decided by a razor-thin margin.  Nor should it be.  Smart lawyers generally bet against it.  But the ninety-eight amicus briefs filed in Fisher prove at least one thing:  Many people are either hopeful or fearful that a decision will overrule or significantly limit Grutter.  Perhaps Fisher will instead be decided on a narrow ground.   But it is possible that the hopes and fears of the amici will turn out to be well-founded.

It is worth noting that significant aspects of Grutter are painfully difficult to square with traditional strict scrutiny doctrine.  Justice O’Connor’s majority opinion recognized (as it had to) that the University of Michigan Law School’s admissions policy was racially discriminatory and therefore must be subjected to strict scrutiny.  At the same time, however, the opinion purported to defer to the law school’s “educational judgment that such diversity is essential to its educational mission.”

Strict scrutiny and deference are opposites.  A court cannot simultaneously defer to the judgment of a defendant that racially discriminates and put that defendant’s discriminatory policies under strict scrutiny.  Consider, for example, Sweatt v. Painter (1950) or even Brown v. Board of Education (1954), two historic cases in the struggle against racial segregation.  At the time, there were academics who sincerely believed that students of all races learn better in racially segregated settings.  If the Court had deferred to their judgment, we might still be in the thrall of Jim Crow.

The problems with Grutter, however, go beyond its peculiar deference to defendants.  Suppose the Court had not deferred.  Imagine instead that the five members of the majority had concluded – all on their own – that Michigan’s goal of campus diversity was both compelling and unachievable by means other than race discrimination.  Such an analysis would still have been fundamentally at odds with strict scrutiny.

The Court’s traditional role in applying strict scrutiny has been to pull the American people back from the brink when they are tempted by the path of race discrimination.  No one claims that if a discriminatory policy is popular it must therefore be constitutional; indeed, popular race discrimination is arguably the worst kind.  Race-preferential admissions, however, are the opposite of popular. A majority of Americans have consistently found the diversity rationale for race-preferential admissions policies – or indeed any other rationale – to be unconvincing.  As Paul Sniderman and Thomas Piazza put it in their 1993 book, The Scar of Race, racial-preferential affirmative action “is controversial precisely because most Americans do not disagree about it.”

Grutter nevertheless held that the diversity rationale was not just convincing, but also compelling.  Rather than pulling the American people back from the brink, the Court dragged them kicking and screaming over it.  Colleges and universities – institutions that are largely insulated from the mainstream political process – were given permission to continue their pattern of discrimination and the public preference for race neutrality was ignored.

A strong presumption against racially discriminatory policies necessarily implies a strong presumption in favor of policies that are race neutral.  They are two sides of the same coin.  Consequently, when the public strongly and consistently prefers race-neutral policies to race-preferential ones, some level of judicial deference really should come into play – deference not to the advocates of race discrimination but to the advocates of race neutrality.  A discriminatory purpose cannot easily be viewed as objectively compelling if it fails even to persuade most Americans.  Given this, Grutter didn’t just err in deferring to the party practicing discrimination, it got the deference issue precisely backwards.  See Gail Heriot, Strict Scrutiny, Public Opinion and Racial Preferences on Campus: Should the Courts Find a Narrowly Tailored Solution to a Compelling Need in a Policy Most Americans Oppose?, 40 Harv. J. Legis. 217 (2003).

Laws and policies that make distinctions based on an individual’s race should ordinarily be upheld only when the need for them is largely uncontroversial (as well as objectively compelling).  Indeed, requiring anything less than substantial consensus is filled with hazard.  Rather than take race off the table, such an approach telegraphs to policy-makers that the presumption against race discrimination is very shallow.  If five Court members are personally persuaded, the presumption quickly evaporates.  Grutter had thus contributed to a proliferation of new and greater race-based preferences from Dodd-Frank to the Fisher case itself.  Indeed, in a recent interview with Columbia University president Lee Bollinger (the named respondent in Grutter), Attorney General Eric Holder argued that affirmative action policies should be generally expanded:   “The question is not when does [affirmative action] end, but when does it begin … When do people of color truly get the benefits to which they are entitled?”

The failure to apply a firm presumption in favor of race neutrality has consequences the Grutter Court probably failed to anticipate:  When the need for racial discrimination is largely uncontroversial, that need is likely to be the real reason for the discrimination.  Consider, for example, the perennial law-school hypothetical of the prison-yard race riot in which the guards temporarily segregate the prisoners by race.  No one need question whether the guards have some ulterior motive for doing what they do.  The reason is obvious – to restore order quickly and hence prevent injury.

The same cannot be said for the diversity rationale for race-preferential admissions – the only rationale the Court has ever approved.  The number of academics who candidly admit that it is not their actual reason for supporting race-preferential admissions is astonishing.  As Harvard law professor Randall Kennedy has written in the American Prospect:

Let’s be honest:  Many who defend affirmative action for the sake of “diversity” are actually motivated by a concern that is considerably more compelling.  They are not so much animated by a commitment to what is, after all, only a contingent, pedagogical hypothesis.  Rather, they are animated by a commitment to social justice.  They would rightly defend affirmative action even if social science demonstrated uncontrovertibly that diversity . . . has no effect (or even a negative effect) on the learning environment.

(For a catalogue of similar statements, see Professor Brian Fitzpatrick’s The Diversity Lie.)

The problem is that the reasons cited by academics – like past societal discrimination or the need for more minority professionals – have already been rejected as unconstitutional in Justice Powell’s controlling opinion in Regents of the University of California v. Bakke (1978). Wygant v. Jackson Board of Education (1986) also addressed the societal discrimination justification and rejected it.  If these reasons had been addressed in Grutter they would likely have been rejected again.

Grutter thus implicitly makes pretext a central issue:  A plaintiff who can prove that a particular university is motivated by something other than a desire to enhance the educational experience of its students through diversity should prevail in court.

Unhappily, such an approach creates the need for an individualized adjudication of each institution’s motive.  Under the best of circumstances, that would mean a multiplicity of lawsuits addressing racially sensitive issues.  But these are not the best of circumstances.  Few potential plaintiffs have the resources needed to mount the fact-intensive institution-by-institution inquiry into pretext.  As a consequence, a university that asserts its race-preferential admissions policy is motivated by a desire for diversity’s educational benefits is effectively protected from challenge.  Unconstitutional policies are thus able to sink their roots deeper and deeper.

This is especially troubling in view of the mounting evidence discussed in Dr.  Richard Sander and Stuart Taylor, Jr.’s SCOTUSblog post (and in two Fisher amicus briefs here and here) that race-preferential admissions simply don’t work.  Indeed, they have backfired.  No one should be surprised that admitting a student to a class where his or her entering academic credentials are at the bottom of the class can make it more difficult for that student to succeed.  If this research is right, many students who receive preferences – whether on account of race, athletic prowess or parents’ alumni status – would have increased their chances of becoming a physician, scientist, engineer, college professor or lawyer, if they had attended instead a school where their entering credentials would have put them in the broad middle or the top of the class.  Put differently, we would have more African-American physicians, scientists, engineers, college professors, and lawyers if we had been using race-neutral admissions rather than preferences.

There is no painless solution to the problems created by Grutter.  But if the Court re-affirms that decision, it will be standing by incoherent equal protection doctrine as well as perpetuating what the evidence indicates to have been a tragic error.  We are among those who hope the Court takes decisive action.

Posted in Featured, Fisher Symposium

Recommended Citation: Gail Heriot, Online Fisher symposium: Is the era of race-preferential admissions drawing to a close?, SCOTUSblog (Sep. 5, 2012, 3:27 PM),