Civil Rights Deference and Dereliction

As we all try to keep up with the Supreme Court’s Operation Fast and Furious (And Keep the Best For Last), here’s a dorky but perhaps telling point on yesterday’s civil rights decisions:

Two of the cases dealt with employment discrimination—one, with the question of who qualifies as a “supervisor”; the other, with the legal standards that apply to retaliation claims. (Both were 5-4 decisions, with the usual ideological line-up.) In both cases, the statutes at issue are administered by the Equal Employment Opportunity Commission. The EEOC wasn’t a party to the proceedings (it just issued “right to sue” letters), but it submitted amicus briefs, explaining that its “Guidance” documents firmly supported the plaintiffs’ positions.

Guidance documents aren’t regs, so they don’t get Chevron deference. But they do (or would ordinarily) get Skidmore deference—meaning, in essence, such deference as they deserve (as measured, for example, by the agency’s reasoning process or consistency over time). And what might that be? By the lights of the two decisions, zero. We “defer” when the agency’s decision strikes us as plausible and we don’t when it doesn’t. Thank you.

Contrast this with Fisher v. University of Texas for now, the latest inconclusive decision on affirmative action in higher ed. (It took the Court nine months to punt this back to the Fifth Circuit. What happened—the clerks couldn’t find the three precedents?) Fisher affirms that the demand for racial “diversity” (or a “critical mass” of minority students)

is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter [v. Bollinger]. … On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University’s conclusion, “‘based on its experience and expertise,’” [citation omitted], that a diverse student body would serve its educational goals.

Not that this is boundless:

Once the University has established that its goal of [racial] diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. … On this point, the University receives no deference.


Suppose the federal Office of Civil Rights (which administers Title VI) issued a “Guidance” on “critical mass” minority enrollment: would that get judicial deference? On yesterday’s EEOC-related decisions, no way in hell. But if the Vice Provost for Getting More Hispanics at Northeastern Kentucky Community College makes a ”critical mass” judgment, that does get (“some, but not complete”) judicial deference. Because she’s only interpreting the Fourteenth Amendment to the United States Constitution.

Good work up there. While I have seven weeks before I have to explain this to my students, I won’t be able to do any better than a shout-out to case-named victims of the insufferable noblesse oblige and kowtowing before the educracy that suffuse the cases from Bakke to Fisher, and to one in particular: Jennifer Gratz, subject of an improbably adulatory front-page piece in today’s Washington Post, Style Section. Way to go, Jen!