Two months ago I wrote about the University of Texas’s attempts to delay the final reckoning from the Supreme Court’s near‐unanimous ruling in the Fisher case that public institutions must overcome a high constitutional bar when they use race in admissions decisions. Courts must make “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
“The university must prove,” Justice Kennedy wrote for the 7‑justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT‐Austin is playing lawyer games and trying to re‐litigate previously decided procedural issues.
But at least UT‐Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”
On Friday, the federal Justice and Education Departments issued a joint “guidance” on the meaning of Fisher v. UT‐Austin. This advice, consisting of a platitudinal cover letter and a superficial Q & A. The government’s position, remarkably, is that Fisher simply reaffirmed 2003’s ruling in Grutter v. Bollinger, which held that educational diversity could be a compelling interest that justified racial preferences at the University of Michigan. “Run along, nothing to see here,” the various civil‐rights‐division bureaucrats seem to say, “the Supreme Court just vacated the lower court’s decision because it didn’t check all the procedural boxes.
To say that the government is being disingenuous here would be like saying that Ted Cruz has a mild distaste for Obamacare. As Richard Kahlenberg comments at the blog of The Chronicle of Higher Education:
This reading of the two Supreme Court cases as essentially identical would presumably be surprising to the justices of the court. Five Supreme Court justices participated in both Grutter and Fisher, yet four of them switched sides in the two cases. Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas dissented in Grutter, in part because universities were not made to demonstrate that race‐neutral strategies were insufficient to produce racial diversity, yet those justices were in the majority in Fisher.
Meanwhile, Justice Ruth Bader Ginsburg switched in the other direction, from the majority in Grutter to the dissent in Fisher. Her dissent complained that the majority would push universities to adopt race‐neutral strategies like Texas’ top 10‐percent plan, which she viewed as disingenuous. (Justice Stephen G. Breyer, alone, was in the majority in both cases.)
Moreover, the government is green‐lighting any and all diversity initiatives rather than giving actual guidance about how to survive the legal minefield that administrators now inhabit. As Roger Clegg put it at National Review Online:
The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race‐based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination: The administration promises that it “will continue to be a resource” for such schools.
It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law. Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?
In short, the government not only pretends that the Supreme Court didn’t mean what it said, but is encouraging college officials in their massive resistance to yet another Supreme Court ruling on civil rights. These actions enable the type of “holistic” racial balancing that results in greater racial‐achievement gaps than illegal quotas ever did. Racial preferences today, racial preferences tomorrow, racial preferences forever.
It would be comical if it weren’t so sad — and if it weren’t backed by the full force of the nation’s chief law enforcement officers.