Below, my colleague Charlotte Allen appropriately laments the recent 5th Circuit decision upholding the University of Texas’ racial preferences scheme, in the process expanding the scope of Grutter. She also praises the de facto dissent of Judge Emilio Garza.
Garza’s opinion is worth reading in full, if only because it represents a rare instance of a federal judge who seems to have a clear, real-world understanding of how higher education functions. And Garza’s analysis makes for a depressing read of how Grutter has actually operated.
In one respect, Garza’s opinion represents a transparent call for the Supreme Court to reconsider the constitutionality of racial preferences. As he observes, “Grutter sought to have it both ways. The Court held that racial diversity was necessary to eradicate the notion that minority students think and behave, not as individuals, but as a race. At the same time, the Court approved a policy granting race-based preferences on the assumption that racial status correlates with greater diversity of viewpoints.”
And Garza pulls no punches about the illusion that no one was harmed by Grutter: “For the most part, college admissions is a zero-sum game. Whenever one student wins, another loses. The entire competition, encouraged from age five on, is premised on individual achievement and promise. It is no exaggeration to say that the college application is 18 years in the making and is an unusually personal experience: the application presents a student’s best self in the hopes that her sustained hard work and experience to date will be rewarded with admission. Race-based preferences break faith with this expectation by favoring a handful of students based on a trait beyond the control of all.”
Grutter, of course, held that universities couldn’t use quotas in the admissions process, but could give bonuses to achieve a “critical mass” of minority admittees, because of the educational benefits of a “diverse” student body. The Supreme Court required only that admissions offices give each student individualized review, and look at the entire application, rather than just the student’s race or ethnicity.
Based on the Texas case, this restriction is meaningless. In Garza’s opinion, “the deference called for in Grutter seems to allow universities, rather than the courts, to determine when the use of racial preferences is no longer compelling.” Courts effectively are compelled to accept the “educational judgment” of university administrators in their pursuit of “diversity,” without any way to test the administrators’ actions.
Admissions offices like those of Texas promise that they are following Grutter and giving all applicants “individualized consideration.” But, Garza wonders, “what does this term mean specifically? Grutter never tells us.” As a result, the Court effectively “rewards admissions programs that remain opaque,” that claim to give all applications “individualized consideration” and “holistic review” without ever defining these terms. Moreover, the “holistic review” myth gives universities an excuse not to maintain data on how much race influenced each student’s admission. Therefore, according to Garza, “there is no way to assess how much of a ‘plus’ race gets as a plus-factor in any admissions system. And without the ability to measure the number of ‘but-for’ admits (i.e., admitted minority students for whom race was the decisive factor), courts cannot meaningfully evaluate whether a university’s use of race fits its asserted interest narrowly.”
Grutter, at least superficially, contained one other limiting provision: Justice O’Connor confined its provisions to 25 years. But the Texas case shows how other findings of Grutter nullified the ruling’s sunset clause. As Garza notes, “the Court’s unusual deference to educators’ academic judgments that racial diversity is a compelling interest, coupled with the deference allegedly owed to their determination of when the use of race is no longer necessary would appear to permit race-based policies indefinitely.” And so, while in 2003 the Michigan administration stressed the need for a “critical mass” of minority students on campus, by 2011 the UT administration had stretched the “critical mass” goal to individual majors and even classes(!). This approach would justify a permanent preferences regime, in part because no way would exist to determine whether all classes were “diverse” enough. Again, the Texas case is instructive. To quote Garza, even “assuming a critical mass of minority students could perceptibly improve the quality of classroom learning, how would we measure success? By polling students and professors, as the University of Texas has done? How would we know whether the substantial social harm we are tolerating by dividing students based on race is worth the cost? That classroom discussion is, in fact, being enhanced? How can a party prove that it is? How can an opposing party prove that it is not?”
Grutter contained one other ticking time-bomb for educational quality. Advocates of the educational status quo couldn’t be sure that the Court actually wouldn’t actually enforce the quarter-century sunset on racial preferences. So, building off Grutter’s citations of various cases dealing with secondary and elementary schools, groups like the American Association of Colleges and Universities have promoted the idea of colleges teaching “diversity skills”—in essence, making the promotion of “diversity” the basic purpose of higher education. Garza recognizes the danger, and his opinion appropriately responds: “I do not believe that the university has a monopoly on furthering these societal goals, or even that the university is in the best position to further such goals. Notwithstanding an institution’s decision to expand its educational mission more broadly, the university’s core function is to educate students in the physical sciences, engineering, social sciences, business and the humanities, among other academic disciplines.”
In a post from last year, I noted how Justices Kennedy and Stevens seemed to be basing their opinions on a higher education system that no longer exists. It’s refreshing to see a judge like Garza, who has no illusions on how the academy operates. It’s unfortunate that, as long as Grutter remains law of the land, Garza’s view remains the minority.