Judges do not treat all constitutional rights the same.
We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt.
Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications. The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.
Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth. Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.
In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
Within the past two weeks, federal courts in two circuits have blocked the mandates of Obamacare on private businesses to fund abortion and contraceptives in their medical plans. In both cases, the owners of the businesses combined in the suits were Catholics. And the claim was made in all cases that the mandates compelled the owners to become accomplices in endorsing and facilitating acts that were in deep conflict with the moral teachings they had absorbed as Catholics. But what was striking about the judgments in these cases was that the judges did not rest their judgments on the “beliefs” of the owners.
While the Supreme Court’s decision in Fisher is understood as tightening somewhat the scrutiny of a university’s admission plan that pursues racial diversity, the question is how much it does so. I thought it might be useful to explore the majority’s discussion a bit by considering on which issues universities are entitled to deference.
The Fisher majority drew the familiar distinction in the Equal Protection context of 1) the requirement that government pursue a compelling state interest and 2) that it do so with narrowly tailored means.
The decision in Grutter was unusual in that it conferred deference on the university as to its admission plan, even though the university was subject to strict scrutiny. The question addressed in Fisher was whether the deference extended only to the end or to the means as well. Fisher held that the deference extended only to the end.
Under Fisher, the Court held that the end of pursuing a diverse class is a compelling interest. The diversity is not supposed to be solely that of racial diversity, but instead a diversity of various aspects “of which racial or ethnic origin is but a single though important element.”
A key question here is, how much of the diversity can be racial? How much weight can be given to race in choosing the class? The Court indicated that the diversity cannot involve a specified percentage or quota based on race. But how important can race be – as compared to other types of diversity such as geographic and as to merit factors such as grades and test scores?