Higher Education’s Legal Battlefield

Higher education used to be a quiet sector of American life, seldom disturbed by anything but academic disputes. It was like Gettysburg in June of 1863. Then the armies arrived to fight tooth and nail—this time over the issue of affirmative action. Two major battle actions are going on right now. One case will be argued next in Texas; the other will be decided by the Supreme Court after hearing arguments last week. 

Last spring, the Supreme Court issued its decision in Fisher v. Texas, the most recent case challenging the constitutionality of giving preferences to students who happen to be members of certain racial and ethnic groups. That decision was a sharp rebuke to the lower court (the Fifth Circuit), which had ruled in favor of the University of Texas and its affirmative action policy. 

In short, the Supreme Court told the Fifth Circuit to hear the case again, this time carefully evaluating the arguments made by the university under “strict scrutiny.” In plain English, that means “Don’t just take their word for it, but look closely to see if they’ve really made the case that racial preferences are essential.”

The Obama administration had given full-throated support to the University of Texas and was unhappy over the result. On September 27, the Departments of Justice and Education issued a “guidance” telling higher education officials that Fisher has no effect on their use of racial preferences. As Roger Clegg, general counsel for the Center for Equal Opportunity wrote, “Today’s guidance is flimsy…and relying on it will only get schools into legal trouble.”

Rather than relying on the federal government’s “guidance” college and university officials would be better off if they heeded the brief Cato Institute has submitted for the Fifth Circuit to consider when it rehears Fisher later this year. 

Attorneys Ilya Shapiro, David Rivkin, and Andrew Grossman write that the judges on the Fifth Circuit must ask if there is truly a “strong basis in fact” for the claims made by the university that its racial preference policy is necessary to legitimate educational objectives and that those objectives cannot be achieved otherwise. For instance, the university says that it needs to have a “critical mass” of Hispanic students, but it does not aim at a “critical mass” of Asians, who comprise a smaller percentage of the student body. 

The Supreme Court’s last affirmative action decision prior to Fisher, Grutter v. Bollinger, had said that courts had to exercise “strict scrutiny” when facing litigation over racial preferences, but in fact the majority failed to do that, uncritically accepting the University of Michigan’s claims. The Fifth Circuit is expected to make Texas meet a high burden of proof in defense of its affirmative action policy. 

On another part of the battlefield, cannons and muskets roared over the 2006 vote by the people of Michigan to ban the use of racial preferences by state institutions, including universities. After the Grutter decision, some Michiganians organized to put a measure on the ballot (eventually known as Proposition 2), amending the state constitution to forbid the use of racial preferences in college admissions and public employment.

In that political battle, the forces opposing Proposition 2 included almost all of the major business, labor, political, educational, and religious institutions in the state, while those favoring it had virtually no institutional support. The opponents spent about five dollars for every one spent by the proponents. Nevertheless, in a year when Democrats swept Congress, Proposition 2 was approved by a strong majority—58 percent. (This 2006  Wall Street Journal article by Abigail Thernstrom recounts the David versus Goliath nature of the campaign.)

The enemies of racial neutrality never gave up their battle against Proposition 2. Instead of going back into the political trenches and trying to either repeal or change the new constitutional language, they decided to go to federal court. The argument they dreamed up was that amending the Michigan constitution to ban racial preferences actually violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. 

How could that be? Because, the pro-preference lawyers argued, putting a ban on racial preferences into a state’s constitution was unfair to “minority groups” that supposedly benefit from preferences—unfair because amending or repealing part of a state constitution is hard to do. Therefore, it undermined “equal protection of the law” for groups that are thought to be at a disadvantage in the political process.

That exceedingly strained argument managed to prevail in federal court. The Sixth Circuit Court of Appeals, in an 8-7 vote, ruled Proposition 2 illegitimate. Michigan’s Attorney General, Bill Schuette, immediately appealed that ruling to the U.S. Supreme Court, which agreed to hear the case, which goes under the name Schuette v. By Any Means Necessary. (That name refers to the group, the Coaltion to Defend Affirmative Action By Any Means Necessary that spearheaded the opposition to Proposition 2 and often lived up to its name by frequently employing uncivil tactics.)

If the Supreme Court were to rule in favor of BAMN, Michigan’s ban on racial preferences would be stricken down and officials at public universities could again employ preferences in deciding which students to admit. That, however, seems very unlikely. Oral arguments, and especially the questions the justices ask, usually give a fairly good sense of where they will come down on the case. During the arguments on Schuette, only Justices Ginsburg and Sotomayor seemed to have any sympathy for BAMN’s case.

While the case was being argued, protesters for BAMN chanted, “They say Jim Crow, we say hell no!” That gives an accurate impression of their intellectual coherence: Jim Crow laws mandated that public officials take account of race and treat people differently because of it, while Michigan’s current law mandates that public officials not take account of race and, instead, treat everyone the same. 

Sadly, no justice questioned the core assumption of that case, namely that “minorities” necessarily advocate racial preferences. While some certainly do, especially those in the categories the University of Michigan favors (blacks, Hispanics, and Native Americans), others oppose them. That is particularly true for students of Asian ancestry who are often denied admission to leave enough places for students whose ancestry is preferred.

Besides Michigan, California, Arizona, Nebraska, Oklahoma, and Washington have enacted bans on racial preferences. 

The Court’s decision won’t be announced for months, but it will almost certainly reject the argument that a state’s electorate can’t choose a color-blind policy.

The decisions in Fisher and Schuette will go a long way toward settling whether we continue to obsess over an individual’s race, or get over that obsession.