Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications. The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.
Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth. Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.
The key question of the case is why Texas needs to resort to race given the 10 percent plan. Texas says it needs to create a “critical mass” of minority students but it never defines what is the needed for the critical mass. The general amorphousness of this interest stands in sharp contrast to the kind of interests upheld in other strict scrutiny cases. Texas did argue that it needed racial and ethnic preferences to create more diversity within particular courses than the 10 percent plan would afford, but it never showed that its plan actually achieved this goal or indeed has the prospect of doing so. And in another departure from the general standards of strict scrutiny, the Court does not remand to the lower courts for more evidence on this point. It gives victory to Texas, effectively shifting the burden of proof to the plaintiff to negate the government’s own compelling interest rather than keeping the burden on the government.
The general effect of Fisher II is to make a hollow shell of strict scrutiny in reverse discrimination cases. It allows the nation to proclaim a norm against discrimination against race and ethnic discrimination, while permitting higher educational institutions to engage in reverse discrimination as they please. It is thus of a piece with the term diversity itself as it has come to be used—a façade educational elites finds soothing and the populous at large finds opaque.
This is a positive analysis, not a normative one. Perhaps concepts like diversity and opinions like Fisher are the noble lies we must tell to keep a multicultural society together. But it should make us clear eyed about the honesty of one premise of Grutter v. Bollinger, previously the most important case on affirmative action. Grutter said that these deviations from non-discrimination should last for only a quarter century and that decision is already thirteen years old. Given the power of the forces that have produced such contorted opinions, who can possibly believe that this time table will hold? The more probably result is that the kind of discrimination authorized by Fisher will become ever more deeply embedded in our society.