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A CHANCE, IN HIGHER EDUCATION, TO GET IT RIGHT ON RACEby William Perry Pendley February 1, 2010 Former Supreme Court Justice Sandra Day O’Connor has been quoted as bemoaning that some of her opinions are being set aside. When it comes to her disastrous 2003 opinion in Grutter v. Bollinger, in which she, aided by the Court’s liberal bloc, authorized colleges and universities to use racial preferences to grant admission for 25 more years, reversal could not come soon enough. Like the Court’s pusillanimous 1980 ruling in Fullilove v. Klutznick, which approved the use of race in federal government contracting and emboldened its use by state and local governments until halted by the Court in City of Richmond v. J.A Croson Company in 1989, and Metro Broadcasting v. Federal Communications Commission, which in 1990 allowed the use of race to award broadcast licenses until ended by the Court’s 1995 ruling in Adarand Constructors, Inc. v. Peña, Grutter spawned much mischief. Happily, the Court has a chance to undo O’Connor’s misstep in a case now at the U.S. Court of Appeals for the Fifth Circuit. When the Fifth Circuit ruled the University of Texas Law School’s use of race to grant admission unconstitutional in 1996, Texas enacted a law granting automatic admission to any of the state’s public colleges or universities to Texas students in the top 10 percent of their high school class; minority enrollment soared. Nonetheless, after Grutter, the University of Texas reinstituted its use of race for admission. As a result, Abigail Fisher of Sugar Land and Rachel Michalewicz of Buda were denied admission; in April 2008, they sued. In August 2009, a Texas federal district court ruled for the University; the Texans appealed. Although the Fifth Circuit could reverse for factual reasons, e.g., the district court relied improperly on student surveys and the University’s unsupported judgment of the “critical mass” of minority students it needs, legal experts are focused on whether Grutter squares with the Supreme Court’s equal protection jurisprudence. In short, it does not! In her opinion in Adarand, in which the Court overturned Metro Broadcasting—decided five years earlier—Justice O’Connor rejected demands by the dissenting justices that, under stare decisis et quieta non movere (to stand by and adhere to decisions and not disturb what is settled), Metro Broadcasting not be overturned. Although Metro Broadcasting had been decided recently, wrote Justice O’Connor, in it “the Court took a surprising turn” that “undermined important principles of this Court’s equal protection jurisprudence, established in a line of cases stretching back over 50 years . . . .” Like Metro Broadcasting, Grutter is a constitutional aberration because it took the same “surprising turn” by “undermin[ing]” the most “important principle[]” of equal protection jurisprudence—application of “strict scrutiny.” Thus, instead of viewing racial classifications (“odious to a free people”) with skepticism and demanding that those who use them carry the burden of justifying their use, Grutter presumed that Michigan Law School’s use of racial preferences to grant admission was constitutional by assuming that the Law School had a compelling interest and that it had acted in good faith. That is not “strict scrutiny” as applied by the Court for half a century or as discussed by Justice O’Connor in Adarand. There she declared that the use of race by governmental entities is “inherently suspect” and “constitutionally suspect” and requires judicial scrutiny to “smoke out” its use when “motivated by illegitimate notions of racial inferiority or simple racial politics.” That is because the Constitution’s guarantee of equal protection is for “persons, not groups,” and is a “personal right to equal protection of the laws [that may not be] infringed.” In Adarand, in her final rebuke to the dissenting justices, Justice O’Connor declared that, by overturning Metro Broadcasting, “we do not depart from the fabric of the law, we restore it.” If and when Grutter meets the same fate as Metro Broadcasting, Sandra Day O’Connor may take solace that the fabric of the law has been restored. |
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