The Supreme Court's double standard on race cases

So much for wishing and hoping the U.S. Supreme Court would declare race-based college admissions policies unconstitutional. On Monday, the court ruled 7-1 that the 5th U.S. Court of Appeals didn’t hold the University of Texas at Austin (UT) to the burden of strict scrutiny as expressed in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978) when it upheld the school’s race-based admissions policy. The court sent Fisher v. University of Texas back to the 5th Circuit.

Five years ago, Abigail Fisher and Rachel Michalewicz claimed UT rejected them because they were white. They filed suit, and the District Court granted summary judgment in UT’s favor. The 5th Circuit affirmed that decision. Rather than overrule the appellate court’s ruling and hold that race-based admissions policies violate the Equal Protection Clause, the Supreme Court took issue with the 5th Circuit’s standard of review.

The court in Grutter ruled that schools could consider race as a “plus” factor, while the court in Bakke ruled that schools could take race into account, but they couldn’t use racial quotas. In the Grutter companion case, Gratz v. Bollinger, the court struck down the school’s points-for-race system. In other words, admitting students based on race at taxpayer-supported schools is OK, as long as the method is fuzzy. Are we still living in the 1950s?

Race is a “suspect classification” that falls under the strict scrutiny standard of judicial review. To pass this test, a law must have a compelling government interest that’s narrowly tailored, and it’s the least restrictive means for achieving that interest. When would racially discriminating against anyone, even the wealthiest white person whose ancestors owned slaves, ever be a narrowly tailored compelling government interest? And good luck explaining “least restrictive means” to someone denied admission because they’re the wrong color.

In a concurring opinion longer than the majority opinion, Justice Clarence Thomas reminded the court that the “educational benefits” argument in support of discriminatory policies that favor blacks in 2013 was once used to justify discrimination against blacks in the 1950s. The court rejected similar arguments put forth by segregationists. Any present-day admissions policy at a taxpayer-supported school that rejected blacks because they’re black not only would be struck down in the most passionate terms, it would receive non-stop news coverage and international condemnation.

Why the double standard? Why allow the government to continue discriminating on the basis of race rather than apply the Equal Protection Clause to all citizens? The phrase “Equal justice under law” is engraved on the front of the Supreme Court building. Monday’s decision and every other ruling that bestow unmerited advantages to some and unmerited disadvantages to others based on skin color betray an ideal that we should uphold, even in a fallen world.

Next term, the court will hear arguments in another racial preferences case, Schuette v. Michigan Coalition to Defend Affirmative Action. Will the highest court in the land stand up for equal justice under law?