Among the biggest cases to occupy the Supreme Court in the upcoming Term is Fisher v. University of Texas, posing (yet again) the question of whether and to what extent institutions of what still passes for higher learning may adopt more or less overtly race-conscious policies in the pursuit of “diversity.” Last week, Michael Rosman of the Center for Individual Rights had a characteristically clear-headed scotusblog post on an important aspect of the case, and of the Court’s Equal Protection analysis more broadly.
(Mr. Rosman understands the issues like no one else. He was counsel to plaintiffs in Hopwood v. State of Texas as well as Gratz v. Bollinger and Grutter v. Bollinger—the cases whose true meaning, to the extent it can be discerned, is at issue in Fisher. FWIW Mr. Rosman is also a member of a fabled Yale Law School class that further included Mike Rappaport, Mike Paulsen, and Akhil Amar, among others.)
Racial preferences must be “narrowly tailored,” and judicial scrutiny on that issue is supposed to be “strict.” Part of the inquiry is whether the defendants seriously considered “race-neutral alternatives.” This, Mike Rosman argues compellingly, makes no sense, and may actually produce worse results than outright racial preferences.
The demand for “race-neutral alternatives,” he says, may mean simply a demand to examine whether admission (employment, contracting) criteria that appear to have a disparate impact on minorities are truly necessary. If so, courts should ask and answer that question. Or else, it may mean that universities (employers, contracting agencies) should examine (and presumably adopt) facially neutral selection criteria that promise to drive up minority ratios, regardless of whether those criteria have anything to do with what the institutions are trying to select for. Putting aside that plans of this sort are constitutionally problematic because they were adopted for a racial purpose, they make little sense. Once you start adding irrelevant selection criteria or eliminating relevant ones, you’re no longer even sure that you will reach and recruit the best-qualified minority applicants. You either have to defend those steps as a way of remedying past discrimination or else, re-define the purpose you are selecting for (e.g., from “elite education” to “diversity”). Either way, the “alternatives” inquiry is an unhelpful distraction.
Mr. Rosman holds little hope that Fisher will clarify or, better yet, jettison this particular inquiry: for reasons he explains, the case is a very bad vehicle for this purpose. I’d go further: even if the perfect vehicle arrived on the Court’s doorstep, the justices wouldn’t know what to do with it.