Grutter Revisited

Edward Blum examines the six-year old Supreme Court case, Grutter v. Bollinger, where the court barred racial quotas but allowed some racial considerations in admissions in the name of skin deep-only diversity. A similar case in Texas is winding its way through the system. If it reaches the country’s highest court, Grutter’s “fuzzy” law may get some much-needed clarification. From Minding the Campus:

“The Grutter opinion was significant in that it held that the creation of a racially diverse student body was so beneficial to the educational experience of everyone that there was a ‘compelling state interest’ to lower the admissions bar for some applicants, and raise it for others.”

Without offering proof or even a logically sound rationale, the Supreme Court decided that racial discrimination was okay after all. Admitting white applicants with lower grades and scores over blacks with higher grades and scores would be untenable.

Blum notes that the court created “fuzzy” law by allowing racial considerations, yet placing a heavy burden on schools that consider race. The court’s politically expedient opinion has left schools that care about observing the law in a quandary. Skin color diversity is a “compelling state interest” that justifies discrimination and lowering standards, but racial considerations must be “narrowly tailored” to achieve the end.

What exactly did they mean?

“[T]he opinion unequivocally specifies that narrow tailoring requires that, before putting a thumb on the race scales, a school must pursue a ‘serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity [it] seeks.’…How much, or how little, serious consideration of race-neutral alternatives must be made is undefined, which has allowed college administrators to operate unrestrained when it comes to their school’s race preferences. Even the president of the Association of American Law Schools noted in a recent law review article that most colleges and universities have not paid as much attention to this part of the Grutter opinion.’”

Colleges and universities will pay attention if Fisher v. University of Texas ends up in the Supreme Court. Blum provides background on the state’s Top Ten Percent plan, which guaranteed admissions to state schools to any student graduating in the top 10 percent of their Texas high school class. The plan did exactly what it was designed to do: increase minority enrollment. Once the Supreme Court gave schools the go-ahead to consider race, however, Texas reverted to explicit racial preferences.

The plaintiffs in Fisher, denied admission to UT, contend that the plan was an example of a race-neutral admissions approach discussed in Grutter, and they would have been admitted had Texas not resumed race-based admissions. A lower court judge ruled against the plaintiffs, and the case is on appeal.

“The prospects for the plaintiffs at the high court look promising,” Blum writes. “Justice O’Connor, the author of Grutter, has been replaced by the more conservative Justice Alito. Justice Kennedy, the swing vote today on many high-profile, hot-button cases, dissented in Grutter and it is not unreasonable to expect him to look at UT-Austin’s reintroduction of race preferences with a good degree of skepticism. As well he should.”

The court gave itself and tax-supported schools wiggle room in Grutter. Instead of banning race-based discrimination and preferences outright for the odious policies they are, the court gave schools permission to continue the contentious practice of expecting less from blacks and more from everyone else.

Some call that progress.