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Vigilance in the Defense of Liberty and Freedom
Monday, October 17, 2011
ABIGAIL FISHER, a white student, says she was denied admission to the University of Texas because of her race. She sued in Federal District Court in Austin, causing Judge Sam Sparks to spend time trying to make sense of a 2003 Supreme Court decision allowing racial preferences in higher education. “I’ve read it till I’m blue in the face,” Judge Sparks said in an early hearing in Ms. Fisher’s lawsuit. But the meaning of the central concept in the decision — “this esoteric critical mass of diversity of students,” he called it — kept eluding him.
The 2003 Supreme Court decision he was trying to understand, Grutter v. Bollinger, had elevated the concept of “diversity” from human-resource department jargon to constitutional stature. The pursuit of diversity, a five-justice majority said, allows admissions personnel at public universities to do what the Constitution ordinarily forbids government officials to do — to sort people by race.
Judge Sparks in the end ruled that the Grutter decision meant that Texas was allowed to take account of Ms. Fisher’s race. Now her case is hurtling toward the Supreme Court. That could provide a fresh opportunity to consider what we mean when we talk about diversity. It could also mean the end of affirmative action at public universities.
Ms. Fisher’s lawyers filed a petition seeking a Supreme Court review last month, and legal experts say the justices will probably agree to hear it, setting the stage for a decision by June. Such a decision, given changes in the membership of the court since 2003, is likely to cut back on if not eliminate the use of race in admissions decisions at public colleges and universities.
Diversity is the last man standing, the sole remaining legal justification for racial preferences in deciding who can study at public universities. Should the Supreme Court disavow it, the student body at the University of Texas and many other public colleges and universities would almost instantly become whiter and more Asian, and less black and Hispanic.
A judicial retreat from diversity would be deeply symbolic, too. The term — a gauzy, unobjectionable way to talk about the combustible topic of race — has had a remarkable run. If the diversity rationale falls apart in university admissions, it could start to test the societal commitment to it in other arenas, notably private hiring and promotion.
There is little question that diversity as a legal justification for preferences is at risk. Grutter was decided by a 5-to-4 vote. The author of the majority decision, Justice Sandra Day O’Connor, announced her retirement in 2005. Her replacement, Justice Samuel A. Alito Jr., has consistently voted with the court’s more conservative justices in major decisions hostile to the use of racial classifications by the government.
“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in “The Conservative Assault on the Constitution,” published last year.
Chief Justice John G. Roberts Jr. has certainly been intensely skeptical of government programs that classify people by race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote in a 2007 decision limiting the use of race to achieve public-school integration.
Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, was less categorical, and he has sometimes served as a brake on the ambitions of his more conservative colleagues in cases concerning race. But he has never, Professor Chemerinsky noted in an interview, voted to uphold an affirmative action program.
John A. Payton, president of the NAACP Legal Defense and Educational Fund, said studies supported the value of a diverse student body. “There is no longer any doubt as to the educational benefits of racially diverse students learning together and from each other,” he said.