Should public universities make admissions decisions based on a student’s race? Last year, in Fisher v. University of Texas, the Supreme Court held that race could be considered, but only after a university establishes that its use of race is narrowly tailored to achieve “the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” The Court then vacated an earlier Fifth Circuit decision which had approved the use of race by the University of Texas, and remanded the matter.
Today, the Fifth Circuit ruled that the University of Texas could continue to use race in student admissions in order to obtain a “critical mass of campus diversity.” There is at least one rather large problem. Neither the University, nor the court, ever specifically defined what that means. As Judge Emilio Garza pointed out in his dissent in the latest Fisher decision by the Fifth Circuit:
Although the University has articulated its diversity goal as a “critical mass,” surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal—essentially, its ends remain unknown.
The Supreme Court reiterated in its decision from last year that a reviewing court was never to defer to a university’s decision that its use of race in admissions was a narrowly tailored measure necessary to achieve a diverse student body. But that is exactly what a majority of the Fifth Circuit panel did. As Judge Garza explains:
By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University “no deference” on its narrow tailoring claims, compels the conclusion that the University’s race-conscious admissions process does not survive strict scrutiny.
There may be a silver lining. The Fifth Circuit’s decision may open the door for the Supreme Court to review its controversial 2003 decision in Grutter v. Bollinger, which approved race-based preferences for the purpose of student-body diversity. The Court should reconsider whether there is any circumstance, other than rectifying past policies of intentional discrimination, that supports the use of race in college admissions. Certainly trying to create an arbitrary racial mix in the student body should not be a sufficient justification for discriminating against individual students on basis of their skin color. Discrimination is wrong. The Supreme Court should make that perfectly clear to all of our public institutions of higher education, starting with the University of Texas.