Texas law crumbles under ‘strict scrutiny’
Rep. Geanie Morrison, R-Victoria, background, listens to testimony from Michelle Hayner, foreground, during a meeting of the House Committee on Higher Education Monday, Feb. 26, 2007, in Austin, Texas. Hayner is a junior at Westlake High School. Lawmakers considered several bills that would tweak the top ten percent university admissions law. Rep. Morrison chairs the committee. (AP Photo/Harry Cabluck)
Abigail Fisher, the Texan involved in the University of Texas affirmative action case, accompanied by her attorney Bert Rein, talks to reporters outside the Supreme Court in Washington, Wednesday, Oct. 10, 2012. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. The case could produce new limits on affirmative action at universities, or roll it back entirely. The University of Texas at Austin President Bill Powers is at right. (AP Photo/Susan Walsh)
Perhaps the most important case before the Supreme Court this year is Fisher v. The University of Texas. At issue is whether the university’s race-based admissions policy violates the Equal Protection Clause of the 14th Amendment. The university justifies its policy by its desire to enhance cultural and educational learning. While this goal is admirable, it simply is not enough to warrant the infringement of equality.
A policy that favors one race above others is the very definition of discrimination. In reviewing such a policy the Supreme Court applies the highest standard of judicial review – strict scrutiny. The strict scrutiny standard is used to prioritize between competing values. In the Fisher case, the state’s interest in academic diversity must be weighed against an individual’s right to equality.
To be deemed constitutional, the university’s discriminatory policy must satisfy a three-part strict scrutiny test. First, the policy must be justified by a compelling state interest. Second, the policy must be narrowly tailored to achieve that state interest. And third, the policy must use the least restrictive means to achieve its end.
In support of its policy the university relies on Grutter v. Bollinger, a 2003 Supreme Court ruling that allowed Michigan’s School of Law to use race as a factor in admissions. The Grutter decision, however, should be considered an outlier as that court failed to properly administer the strict scrutiny standard.
The Supreme Court has historically defined a “compelling state interest” as something necessary, rather than something preferred. If a diverse student body was truly necessary, wouldn’t that require all universities to adopt admission protocols that guarantee diversity? How would states with less diverse populations comply?
Moreover, the prevailing social science has changed considerably since Grutter. Studies continue to be published that detail the negative effect of placing students beyond their academic abilities. And while social scientists can debate which view is right, the debate itself cannot be ignored. In the very least, the ongoing dispute calls into question whether the policy is truly necessary, as opposed to merely preferred.
The university’s discriminatory policy also fails to meet the requirement that it be narrowly tailored. Academics seek to achieve a “critical mass” so that minority students feel free to participate in classroom discussions. However, they have failed to define this goal with any specificity. In the absence of these boundaries, the university’s admission policy is based solely on a good faith, self-policed standard which, of course, is the opposite of narrowly tailored.
Lastly, the university policy fails the strict scrutiny requirement that it be the least restrictive means. In 1997, the Texas legislature enacted a law specifically designed to expand diversity. The law required the University of Texas to admit all high school students who ranked in the top 10 percent of their graduating class. The result of this law was improved diversity across all demographics. Since the 10 percent law achieved diversity in a race-neutral way, the university’s race-based policy is not the least restrictive means.
Advocates for racial preferences are plagued by double-speak. In defense of their policy they suggest the admissions process is “holistic.” Race is only a factor to be used on occasion to differentiate between equally qualified students. Yet in reality the admissions process is mechanical. There are academic indexes and personal indexes for each student. Those indexes are combined and weighed to make a decision. It’s formulaic, not intuitive.
Essentially, the Grutter decision replaced strict scrutiny with a good-faith deference to the academic community, granting it freedom to construct diversity. What policy makers would not hold tightly to such broad deference? Unfortunately, the very point of strict scrutiny is that the policy cannot be self-justified. Deference to the policy maker and strict scrutiny are simply incompatible. Nowhere is this more poignantly evident than in the landmark case of Brown v. The Board of Education. What would have happened if that court deferred to the academics of the 1950s and upheld the divisive policy of separate but equal?
This country was founded on the principles of equality, opportunity and the dignity of the individual. The Declaration of Independence established that “all men are created equal.” These values were carried forward in the Constitution and are protected. The 14th Amendment guarantees equal protection under the law, to all people.
More than anything, the Fisher case reminds us that there will always be social objectives, transient in their nature. It is the Constitution that guarantees individual rights. And faith must remain with the Constitution rather than be outsourced to the judgment of policy makers.
During the civil rights movement, Dr. Martin Luther King Jr. articulated the fundamental value of equality. He asked that his children be judged not by the color of their skin, but by the content of their character. His words captured the underlying and founding principles of our country. Fifty years later we should aspire for nothing more, and tolerate nothing less.
(Brian J.X. Murphy is president of Castlebridge Risk Management and chief legal officer at Alliance Holdings Inc. He previously served as a member of the New Hampshire House Judiciary Committee and is a former special assistant attorney general. He studied constitutional law and received his juris doctorate from The John Marshall Law School in Chicago.)