Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of tiers of review.
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?
The Court says:
university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328. Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” id., at 330, that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.
This language – especially that the court ensure there is a reasoned explanation – suggests that the university gets to decide a great deal. It can go up to some unspecified line at which race would be given too much weight. My interpretation of the decision is that there is no deference to the university as to the determination of where that line is. But the conclusion that diversity would promote the educational mission of the university just short of that line is entitled to deference. (An alternative way to think of this conclusion, as to where the line is, is that the university’s decision receives deference, but that giving too much weight to race would be unreasonable despite the deference to which the university is entitled.)
On the other hand, the Court states that there is strict scrutiny without deference as to the means chosen by the university. The Court says that the reviewing court must determine that the university has shown that taking race into account is necessary to producing a racially diverse class. Thus, no deference would be given to the university as to whether a 10 percent plan (under which the top 10 percent of all high school classes are admitted) would produce a sufficiently racially diverse class.
Given this analysis, we can look at a couple of key matters. It seems clear that the critical mass theory reviewed in Grutter, under which the university believes that the benefits of racial diversity require a critical mass of students of certain races, falls within the area that receives deference. Similarly, the enhanced critical mass theory, adopted by the university in Fisher, that required a significant number of minorities in small classrooms, would also be entitled to deference.
In the end, then, it would appear that the university would be entitled to deference as to its decision that the benefits of diversity require a critical mass of racial minorities large enough to ensure a significant number of racial minorities in small classes. If this critical mass is set high enough, then it would make it extremely unlikely that an admissions method that does not take race into account would be able to produce that diversity outcome. There would then be two main ways that race based admissions programs could be struck down. First, it might be struck down as unpersuasive in spite of the fact that the university receives deference as to it. This seems unlikely. Second, it might be struck down if the level of critical mass is so high that it exceeds the extent to which race can be taken into account – that is, if it crosses the line (referred to above) between race being an important factor and race being an overriding factor. This decision, as to whether it crosses the line, would not be entitled to deference.