In Fisher v. University of Texas the Supreme Court held that the Fifth Circuit Court of Appeals had given too much deference to the university’s conclusion that the nature and extent of its racial discrimination in admissions was essential to promote sufficient “diversity,” and it returned the case to that court for further review. The brief just filed by the Department of Justice in the Fifth Circuit is an all but perfect example of the can of squirming worms invited by the high court’s murky and incoherent holding.
That holding demanded a two-step analysis, ably summarized by veteran Supreme Court journalist Lyle Denniston. In the first step it is fine for courts to rely on a university’s “good faith” belief in “diversity” and the necessity of using some racial discrimination in admissions to achieve it, but in the second step it deserves no deference for its choice of the specific implementing steps it takes. Instead it must prove that it has tried but failed to find, as the Court put it, “workable race-neutral alternatives [that] would produce the educational benefits of diversity,” that it could not find “a nonracial approach [that] could promote the substantial interest about as well and at tolerable administrative expense.”
The Texas two-step analysis thus required makes counting the angels dancing on the head of a pin seem by comparison like rigorous number crunching, but the DOJ brief demonstrates that no needle’s eye is too small to thread, no loophole is too narrow, no obstacle is too high for President Obama’s lawyers to justify preferential treatment based on race.
In a brief overflowing with low points, here are a few of the more striking:
• In order to justify continuing “diversity”-providing discrimination, all a university need provide is “concrete evidence” and “a reasoned explanation of why that evidence indicates that the University is not providing the educational benefits of diversity.”
• In evaluating that explanation, courts should give “due regard” to a university’s “multi-faceted educational assessments” because its “conclusion that it has not yet achieved the educational benefits of diversity will necessarily rest in large part on the University’s application of its educational judgment and expertise to the available evidence about the educational experience it is providing.”
• Courts should thus reject the “strong basis in evidence” standard in evaluating a university’s discrimination-justifying evidence because that standard “does not entail any deference to the entity’s judgment…. Because that evaluation entails the application of educational judgment, the court cannot simply assess the evidence for itself.”
• Courts should defer to a university’s determination of the degree and kind of “cross-racial interaction” required to promote an acceptable amount of “cross-racial understanding.”
• In order to reach that determination, universities can rely on such “evidence” as “faculty accounts indicating that minority students are isolated in the classroom,” a survey to determine “the degree to which minority students feel isolated,” or a “demographic breakdown of the student body [revealing] that certain minority groups are too underrepresented to overcome racial isolation.”
I could go on (the brief certainly does), but let’s pause over that demographic data. The brief appears to acknowledge that such demographic data “is not relevant for its own sake,” but it nevertheless argues that “it is an indication of the university’s ability to provide the educational benefits of diversity.” What this means is that heads, “diversity” wins; tails, critics of “diversity” lose: underrepresentation proves the lack of sufficient diversity, but an absence of underrepresentation is not sufficient evidence of its presence.
As Edward Blum, one of Amy Fisher’s lawyers, argued in an email to Inside Higher Ed, the DOJ’s brief in effect “instructs the Fifth Circuit to ignore the Supreme Court’s recent opinion.”
Blum is correct, but the deeper problem is not with the DOJ brief itself but with the Supreme Court’s disastrous validation of the flight from a clear non-discrimination standard that began with Bakke, that turned into a full-fledged rout in Grutter, and that, at least so far, has not been curtailed by the Texas two-step temporizing in Fisher.