This amicus brief was filed on behalf of Reason Foundation, the California Association of Scholars, Connecticut Association of Scholars, Center for Constitutional Jurisprudence, Individual Rights Foundation, and American Civil Rights Foundation.
The Court’s traditional role in applying strict scrutiny has been to pull the American people back from the brink when they are tempted by the path of racial discrimination. Grutter’s deferential approach to academic authority, however, does just the opposite. A majority of Americans have consistently found the diversity rationale for race-preferential admissions policies-or indeed any other rationale-to be unconvincing. But in Grutter the Court nevertheless held that the diversity rationale was not just convincing, but also compelling. Rather than pulling the American people back from the brink, the Court dragged them kicking and screaming over it. Colleges and universities-institutions that are largely insulated from the mainstream political process-were given permission to continue their pattern of discrimination. The strong presumption in favor of race neutrality that is characteristic of the strict scrutiny doctrine was thus abandoned.
Laws and policies that make distinctions based on an individual’s race should be approved only when the need for them is largely uncontroversial. Requiring anything less than substantial consensus is filled with hazard. Rather than take race off the table as the strict scrutiny doctrine is designed to do, a relaxed strict scrutiny standard virtually guarantees that racial politics will thrive. Legislatures, city councils, administrative agencies, college campuses and courts will be the scene of racial controversy and jockeying for position for years to come.
Among other things, when the need for racial discrimination is largely uncontroversial, that need is likely to be the real reason for the discrimination. Consider, for example, the perennial law school hypothetical of the prison-yard race riot in which the guards temporarily segregate the prisoners by race. No one need question whether the guards have some sinister reason for doing what they do. Their motives are obvious-to restore order as quickly as possible and hence prevent injury. The same cannot be said for the diversity rationale for race-preferential admissions. The number of academics who candidly admit that the diversity rationale has nothing to do with their actual reasons for supporting race-preferential admissions is astonishing. Far more commonly they cite the need to compensate minori-ties for past or present societal discrimination. Even that justification is often pretextual. Unhappily, old-fashioned racial pork-barreling is often the best explanation for actual practice. Only under-represented minorities with political clout get included.
Yet Grutter has essentially immunized these race-preferential admissions policies from liability. Given the difficulties of mounting fact-specific litigation against each and every school in the nation that practices these admissions, the diversity rationale has become a convenient fig leaf allowing race-preferential policies to flourish.
Additionally, the Grutter decision holds out the implicit promise that other controversial racially dis-criminatory policies instituted by a college or univer-sity (or by any institution that believes itself worthy of deference) may be approved as well. Grutter thus creates not just the need for litigation to examine universities for pretext, it also increases the number of laws and policies-from race-preferential financial aid to racially segregated dormitories and graduation ceremonies-that should be examined by the courts.
Put more simply, “Grutter-deference” creates more racially sensitive legal issues than it puts to rest. The only thing that prevents the number of lawsuits from overwhelming the courts is the unfor-tunate fact that few victims have the resources need-ed to mount the fact-intensive institution-by-institution inquiry into pretext that Grutter implicit-ly requires. As a consequence, unconstitutional race discrimination has now sunk its roots deep into higher education.
There is no painless solution to the problem. If the Court follows Grutter, rather than reaffirming its prior tradition of non-deferential strict scrutiny, it will either create the need to examine all race-preferential admissions policies for pretext on a case-by-case basis or (more troublingly) it will shelter sham diversity policies from scrutiny on account of the difficulty in financing constitutional litigation that can affect at most only one institution. Regardless of which path is followed, Grutter will have raised the profile of racial politics in the law rather than lowered it.
The alternative is for this Court to overrule the Grutter decision and to re-establish what for an all-too-brief period in time was taken for granted-that race neutrality is the rule under the Constitution and race discrimination is the rare exception. In the long run, the latter alternative is much to be preferred.
No one should imagine that individual universities many of which have a long history of discrimi-nation themselves-are in a position to solve the problem on their own. This is a collective action problem. By lowering admissions standards for mi-nority students, top-tier schools get somewhat more minority students into their freshman classes than they would otherwise have (and receive rewards from funding sources for having done so). But second-tier schools must then also lower their standards, since the minority students who would have attended those schools under system-wide race-neutral admis-sions policies are now likely at a top-tier school. The problem is thus handed down to the next tiers with-out actually increasing the overall level of diversity. As a result, no school can opt out of this unfortunate system without facing the likelihood that it will have very few minority students. Given the pressure that accrediting agencies, public and private funding sources and student groups apply to encourage race-preferential admissions, opting out is not a practical strategy.
If race-preferential admissions are to be ended, the Court must undertake in keeping with the highest American ideals of equality-to overrule Grutter.