I’ve followed the court for a long time and have a deep interest in and respect for the institution. If you think about it, it is truly remarkable that we extend so much legitimacy to a group of unelected judges. Take the ruling that allowed gay marriage, for example. The court ruled on a very controversial issue and, literally overnight, the debate ended. Five unelected judges overturned thousands of years of tradition and accepted law. There were no protests after the ruling, no armed insurrections, and no efforts to recall the 5 majority judges. We simply accepted their ruling. Think about that and think about the various other cases the court has ruled on that we, as citizens, have simply accepted as a consequence of living in a republic.
To be certain, there have been rulings that I’ve disagreed with and in each of those cases I’ve read the majority and the dissenting opinions. Most of the time I could understand the legal reasoning on both sides and could follow their logic as they moved through the constitutional issues involved. Most of the time.
Unfortunately, the recent ruling allowing universities to take race into account in admissions decisions was not one of those times. In prior cases the court established that race-based admission and other affirmative action efforts had to pass strict scrutiny. Think of strict scrutiny as establishing very narrow boundaries around a practice or policy and requiring the entity to be able to justify why those boundaries were set where they were. Applied to affirmative action, prior SC rulings essentially said that race could be used as a factor in admissions but that its use had to be justified and narrowly tailored. By the way, in prior decisions the SC stated that it aimed eliminate affirmative action in about 25 years.........
Yesterday’s ruling on a case from Texas, however, seemingly turned legal precedent on its head. The court ruled that the University of Texas’ system of racial preferences was constitutional and that it did pass strict scrutiny.
The problem, however, was that the majority didn’t require the UT to define what it meant as a “critical mass” of black students, nor did it require UT to provide ANY evidence that their efforts HELPED black students or students in general. According to the majority, the UT system was justified in using race in admissions because doing so allowed for “the destruction of stereotypes,.. the promotion of cross-racial understanding.” These, the majority ruled, were “concrete and precise goals."
Writing for the majority, Kennedy stated “ A university is in large part defined by those intangible qualities which are incapable of objective measurement but which make for greatness......” He goes on to say "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
Even if you are a supporter of affirmative action, shouldn’t this bother you?
**The court essentially ignored its very recent rulings concerning the use of race in these decisions.
**The court accepted that “intangible qualities” that "cannot be measured" are now acceptable legal standards.
**The court stated that administrators should be give broad deference in obtaining undefined and unmeasurable goals.
**And apparently the court now believes that universities exist, in part, to destroy stereotypes (Sssshhh, don’t tell them that affirmative action CAUSES racial stereotyping).
So, if you are fine with this standard of legal reasoning please be willing to accept it in other areas. Maybe police, for instance, should be given greater deference because policing requires a recognition of intangible qualities that cannot be measured? I assume you would be fine with this.
Ask yourself what the consequences are when strict scrutiny means a business, a university, or a police department can make vacuous statements about undefined and allegedly unmeasurable goals and then translate those beliefs into a practice that OPENLY discriminates against your favorite group. I mean seriously, didn’t the court reject the arguments about gay marriage for similar reasons? Undefined social goals.....not easily measured......openly discriminatory......deference to states rights, tradition, custom, and religion?
Alito’s 51 page dissent is worth reading. He excoriates the legal reasoning behind the majority opinion .
To the extent that UT has ever moved beyond a plea for deference and identified the relevant interests in more specific terms, its efforts have been shifting, unpersuasive, and, at times, less than candid.
UT has never shown that its race-conscious plan actually ameliorates this situation. The University pre sents no evidence that its admissions officers, in adminis tering the “holistic” component of its plan, make any effort to determine whether an African-American, Hispanic, or Asian-American student is likely to enroll in classes in which minority students are underrepresented.
UT either has not crunched those numbers or has not revealed what they show. Nor has UT ex plained why the underrepresentation of Asian-American students in many classes justifies its plan, which discrim inates against those students.
UT has claimed that its plan is needed to achieve a “critical mass” of African-American and His panic students, but it has never explained what this term means.
This is a plea for deference—indeed, for blind deference—the very thing that the Court rejected in Fisher I.
Notwithstanding the omnipresence of racial classifica tions, UT claims that it keeps no record of how those classifications affect its process. “The university doesn’t keep any statistics on how many students are affected by the consideration of race in admissions decisions,” and it “does not know how many minority students are affected in a positive manner by the consideration of race.”
Accordingly, UT asserts that it has no idea which students were admitted as a result of its race-conscious system and which students would have been admitted under a race-neutral process. UT thus makes no effort to assess how the individual characteristics of students admitted as the result of racial preferences differ (or do not differ) from those of students who would have been admitted without them.
But to this day, UT has not explained in anything other than the vaguest terms what it means by “critical mass.” In fact, UT argues that it need not identify any interest more specific than “securing the educational benefits of diversity.”
The majority acknowledges that “asserting an interest in the educational benefits of diversity writ large is insuf ficient,” and that “[a] university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Ante, at 12. According to the majority, however, UT has articulated the following “concrete and precise goals”: “the destruction of stereotypes, the promot[ion of] cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.” Ibid. (internal quotation marks omitted).
These are laudable goals, but they are not concrete or precise, and they offer no limiting principle for the use of racial preferences. For instance, how will a court ever be able to determine whether stereotypes have been ade quately destroyed? Or whether cross-racial understanding has been adequately achieved? If a university can justify racial discrimination simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals, see ante, at 12–13 (citing only self- serving statements from UT officials), then the narrow tailoring inquiry is meaningless. Courts will be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.
By accepting these amorphous goals as sufficient for UT to carry its burden, the majority violates decades of precedent rejecting blind deference to government officials defending “ ‘inherently suspect’ ” classifications.
Most troublingly, the majority’s uncritical deference to UT’s self-serving claims blatantly contradicts our decision in the prior iteration of this very case, in which we faulted the Fifth Circuit for improperly “deferring to the University’s good faith in its use of racial classifications.” Fisher I, 570 U. S., at ___ (slip op., at 12). As we empha sized just three years ago, our precedent “ma[kes] clear that it is for the courts, not for university administrators, to ensure that” an admissions process is narrowly tailored. Id., at ___ (slip op., at 10).
I’m not in favor of affirmative action and find it demeaning to minorities. Having worked in higher education for over 20 years, I’ve also witnessed how “diversity” has become a destructive ideology that has all the trappings of a state sanctioned religion.
That said, I’m much more concerned about soundness of this ruling than I am about the use of race in admissions decisions. Universities will always find a way to subvert the law when it comes to this issue.
Something much worse, however, has occurred. By granting wide deference for universities to achieve undefined goals and by removing the burden that they have to be able to show actual evidence that their practices are narrowly tailored, the Supreme Court has just given the green light to university administrators and diversity warriors to say and to do just about anything in the name of diversity.
The consequences of gutting strict scrutiny requirements and the burdens they impose, of accepting lofty goals that are vague and undefined, of vacating the need for statistical evidence or evidence of any kind, of arbitrarily reversing RECENT precedence, and granting broad deference to state actors is worse, much worse, than allowing race to be used for college admissions. What this signals is that the current majority will, in matters that appeal to them the most, go to great lengths to make the law conform to their political views.
This has never worked out well for our country, regardless of which side was involved. Unfortunately, this is a consequence of putting judges on the bench based in part on the ideology of whoever happens to be president at the time. How else, after all, do you explain Justice Sotomayor?
The ruling is attached below:
John Paul Wright and Matt DeLisi
Professors of Crime and Criminology