Summary Judgement: Supreme Court punts on Racialism by Universities

In one of its final decisions of the October 2012 Term, the Supreme Court of the United States declined to overturn a controversial 2003 ruling (Grutter v. Bollinger) that allows colleges to use racial preferences to grant admission until 2038. Instead, by 7-1, the Court remanded Fisher v. University of Texas at Austin to the U.S. Court of Appeals for the Fifth Circuit for further proceedings. Thus, the day the Court ends three decades of endorsing race-based decision-making is years away.

The trip down this road did not begin with President Kennedy’s administrative “affirmative action,” which after all was only the federal government’s demand that neither it nor the private entities with which it contracted could discriminate. Instead it started in 1980 in the Court’s review of a racial quota Congress inserted into a jobs bill. Regrettably, its pusillanimous ruling (Fullilove v. Klutznick) deferred to Congress and opened the door to race-based governance. Congress, plus State and local governments, rushed in with scores of racial set-asides and preferences. By 1989, the Court had seen enough, at least from city governments, and, applying the Equal Protection Clause, struck them down in City of Richmond v. J.A Croson Company. Hopes the Court would also rebuke the federal government were dashed in 1990 (Metro Broadcasting v. FCC) when it upheld racial preferences to ensure diversity in radio broadcasts.

Five years later, however, the Court overturned, explicitly or implicitly, Fullilove and Metro Broadcasting. In a 5-4 ruling (Adarand Constructors, Inc. v. Peña) by Justice O’Connor, the Court ruled “racial classifications” are “inherently” and “constitutionally suspect,” the Equal Protection Clause applies regardless of the race “burdened or benefited by a … classification” and in that regard, the Constitution demands no less of Congress than it demands of state and local governments. Little wonder the ruling was front-page news across the country, led every evening news show, and was called by Time, “a legal earthquake.”

Whether Congress could constitutionally use racial quotas to award highway contracts after Adarand, a Colorado Springs case, was not decided. The Court, given that it “alter[ed] the playing field,” remanded the case for application of its holding. An attempt in 2000 by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit to kill the case drew a unanimous rebuke from the Court. Then in 2001, Adarand returned to the Court. Clinton’s lawyers, on their way out the door defended Congress’s action and urged a ruling, but Bush lawyers were cleverer: Adarand had outlived itself; it was moot; dismiss it. The Court did.

Gone was not only Adarand, but the anticipated 2002 ruling that race-based decision making by Congress, or any governmental entity, is unconstitutional. Then the Court totally lost its bearings when it decided Grutter in June 2003. Justice Stevens crowed later that he had won the day in conference by saying the nation’s top generals, chief executive officers, and college presidents (all filed amici briefs) thought the Court had left the door open to using race to promote, hire, and grant admission. If only Justice Thomas or Scalia, or Kennedy for that matter, could have rejoined, “Not since we decided Adarand last term!”

Then, in November 2003 in another case out of Colorado, the Court declined the chance to reaffirm Adarand and rein in Grutter’s rationale. There a small concrete business demanded an end to Denver’s racial quota contracting system. Scalia dissented from the denial scolding his colleagues that their refusal to hear the case “invites speculation that [our earlier rejection of racial preferences] has effectively been overruled.” “We should … make clear that we stand by [our] insistence that ‘[r]acial classifications are suspect’ [and we must scrutinize them] to ‘smoke out’ illegitimate uses of race.”

The Fisher Court cited frequently to Adarand with approval, but refused to use Adarand to invalidate racialism by the nation’s universities. Whether it ever will is now in serious doubt. 

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular ­­c­olum­nist in ­Loggers World.