May 29, 2012

The Supreme Court should overrule Grutter

By Joshua P. Thompson Senior Attorney

Today, Pacific Legal Foundation filed its brief in the Supreme Court in Fisher v. University of Texas. As you know, PLF has been heavily involved in Fisher for almost three years. We did a video on the case.  I authored these two articles on the case.  We appeared on NPR and wrote op-eds.  And, of course, we have been blogging about this case consistently.  The brief filed today explains why this case is so important.

In the brief filed today — which was joined by the Center for Equal Opportunity, the American Civil Rights Institute, the National Association of Scholars, and Project 21 — PLF explains why the Supreme Court’s decision in Grutter v. Bollinger must be overturned.  Grutter was an aberration.    So long as Grutter remains good law, universities across the country are going to continue to discriminate against students because of the color of their skin.  This must stop.

PLF’s brief makes four important points about why the Supreme Court should overrule Grutter. First, it failed to provide true strict scrutiny review to governmental race-based classifications.  Under the Equal Protection Clause, the government has always had to prove the necessity of employing race-based classifications.  Grutter didn’t do this.  Instead, the Court deferred to the Law School’s interest in creating a “diverse student body.”  But, deference is antithetical to strict scrutiny review. PLF wrote:

“Simply because the [government] may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that  their racial classifications should be subject to less exacting scrutiny.”  Parents Involved, 551 U.S. at 743 (plurality op.).  A compelling interest must be of paramount government importance before it can be used as the basis to racially discriminate against individuals.

Second, the Grutter Court’s finding that the government has a compelling interest in using racial classifications to achieve the “benefits that flow from a diverse student body” is seriously flawed.  The Grutter Court relied on a hodgepodge of politically-interested social scientists to make the case that such discrimination is necessary.  “The social science
foundation of Grutter was never sound, has grown shakier with contrary empirical findings, and crumbles in light of evidence that universities have thrived without racial preferences.”  Until Grutter, this “social science exception” to the Equal Protection Clause was universally rejected. It was rejected when Virginia and Texas used social science research to tout the benefits of segregation, it was rejected when the Jackson Board of Education said they needed to discriminate in order to provide “role models” for black students, and it should have been rejected in Grutter when the Law School said they needed to discriminate in order to achieve “the benefits that flow from a diverse student body.”

Third, while the benefits analysis undertaken by the Grutter Court was seriously flawed, the Court wholly failed to consider the inherent, undeniable, and well-known costs of race-based discrimination.  Treating individuals differently on the basis of their race is destructive of a democratic society based on the principle that everyone is equal under the law. Further, it dehumanizes and stereotypes individuals, by requiring them to act as an embodiment of their race.  And perhaps worst of all, by mismatching students with institutions where they are ill-prepared to compete, universities are seriously harming the very students that they are attempting to benefit through their discriminatory policies.

Lastly, PLF argues in its brief to the Supreme Court, that Grutter is a bad candidate to remain on the books solely based on stare decisis concerns.  Grutter departs from the text of the Constitution by permitting universities to discriminate without any true review of their motives.  The decision is logically incoherent, insofar as it (when coupled with the companion case, Gratz v. Bollinger) encourages universities to “go underground” with their discriminatory polices.  The decision relies on abject subjectivity by using terms like “critical mass”; terms with no real precision that are used to dress up constitutional standards.  Overruling Grutter would also not raise any “reliance concerns” (like those present in Casey), because the decision itself recognizes its own termination, and there is nothing that requires universities to use race-based discrimination in their admissions decisions.

The chance to overrule Grutter is finally squarely before the Court. While voters throughout the country are prohibiting universities from discriminating against students in the way permitted by the Grutter Court, Grutter still permits universities in the remaining states to flout the demands of the Equal Protection Clause.  PLF’s brief shows the Court that there is no reason to permit this unconstitutional discrimination.  Grutter must be overruled.

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