WSJ Lectures About Affirmative Action Cases It Apparently Hasn't Read

Blog ››› ››› SERGIO MUNOZ

The editorial board of The Wall Street Journal attacked constitutional race-conscious admissions policies in higher education, but completely botched Supreme Court precedent as well as the Department of Justice's current legal position on this topic.

Trying to drive a wedge between Justice Anthony Kennedy's recent majority opinion in Fisher v. University of Texas, which reaffirmed that considering race as one among many factors in a holistic admissions policy is constitutional, and DOJ's recent legal brief in the now-remanded case, the WSJ declared that Kennedy "is getting an unpleasant lesson in the Obama Administration's respect for Supreme Court authority." From the November 11 WSJ, timed for Wednesday's oral arguments before the U.S. Court of Appeals for the Fifth Circuit:

In June, Justice Kennedy wrote the opinion for a 7-1 majority in Fisher and remanded it for a rehearing. His opinion stopped short of ending racial preferences in education, but it did emphasize that the use of race in admissions had to be held to the "strict scrutiny" standard laid out in the 2003 University of Michigan case Grutter v. Bollinger. Under Fisher, Justice Kennedy explained, race preferences should be carefully drawn and universities were entitled to "no deference" when courts examined how colleges used race in admissions.

So much for that. According to the Justice Department's brief, strict scrutiny needn't be strict, or even amount to much scrutiny.


[R]ather than looking at percentages of students of varying races admitted or matriculating, the Justice Department argues, the court should make "a qualitative assessment of the educational experience of the university." This is the admissions version of a shell game, dodging the Supreme Court's explicit strict scrutiny instructions by letting a school define its own criteria for using race.

But the Supreme Court never held that universities are accorded "no deference" in judicial review of their consideration of whether and how to diversify their institutions through race-conscious admissions policies, and DOJ never denied the appropriateness of strict scrutiny for this use of race.

Under long-standing affirmative action law, educational institutions can constitutionally use the consideration of race among other characteristics in an individualized holistic review of applicants. As reaffirmed by Fisher, contrary to the WSJ's inaccurate claim, when a university is deciding whether or not its diversity is at the "critical mass" necessary for its educational mission, a court's deference to educational judgment on this evaluation is entirely appropriate. From Kennedy's Fisher opinion:

According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" that a diverse student body would serve its educational goals. 

The "no deference" quote that the WSJ pulls out of context is in reference to Kennedy's further observation that once deference is granted to the university's determination that its diversity is lacking, its subsequent use of race-conscious measures to rectify this problem must be evaluated under strict scrutiny. Even then, Kennedy went on to admit that "a court can [still] take account of a university's experience and expertise in adopting or rejecting certain admissions processes." It is exactly this two-step analysis - which included strict scrutiny - recited in the DOJ brief that the WSJ criticized:

As Fisher explained, judicial review of a university's consideration of race in admissions entails strict scrutiny, but that rigorous review includes consideration of the university's educational judgment and expertise. In evaluating the existence of a compelling interest, "some, but not complete, judicial deference" is due the university's conclusion that the educational benefits of diversity are essential to its mission. That is because a university's determination that the educational benefits of diversity are "integral to its mission" is an "academic judgment" that reflects its educational "experience and expertise." The court's role in assessing the existence of a compelling interest is not to second-guess the university's interpretation of its own mission, but instead to "ensure that" the university has provided "a reasoned, principled explanation for the academic decision."

Since at least 1995, "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," basic civil rights law that DOJ clearly recognizes. The point the brief is making when it discusses the deference due a "university's judgment about its educational objectives" is that strict scrutiny cannot be fatal in fact absent those impermissible "racial classifications." Again, a degree of deference at this stage - when a university is deciding if further efforts at reaching the educational benefits of diversity are needed - was explicitly reaffirmed by Kennedy in Fisher.

Furthermore, there is no "shell game" in the DOJ's description of the process of race-conscious admissions policies as the WSJ alleges. The university's "qualitative assessment of the educational experience" that WSJ derides and that DOJ states a court must acknowledge is - again - required by Fisher because "[a] university is not permitted to define diversity as 'some specified percentage of a particular group merely because of its race or ethnic origin.' 'That would amount to outright racial balancing, which is patently unconstitutional.'" WSJ might not like the diversity rationale set forth in the 2003 opinion of Grutter v. Bollinger, but that's what it is: the consideration of race as one factor among many that contributes to a non-numerical "critical mass." DOJ is not advocating for a university to "look[] at percentages of students of varying races admitted or matriculating" because quotas in higher education have been prohibited since 1978, not because it is engaged in a "racial runaround."

Ultimately, DOJ is not "dodging the Supreme Court's explicit strict scrutiny instructions by letting a school define its own criteria for using race." The WSJ just doesn't understand the instructions, or how race-conscious admissions actually work.

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