“These circumstances refute any criticism that the university did not make good-faith efforts to comply with the law.” So wrote Justice Anthony Kennedy recently in his opinion for the Supreme Court upholding the University of Texas at Austin’s racial preferences admissions program in the lawsuit originally filed by Abigail Fisher almost a decade ago.
Regrettably, this Alice-in-Wonderland-like fog about how America’s colleges and universities are administered traces to the opinion that started the nation’s highest court down this decades’ long rabbit hole into the admissions practices of higher education: Justice Lewis Powell’s solitary concurrence in the 1978 case of University of California v. Bakke.
Justice Powell wrote in what at the time amounted to little more than a throwaway line: “A court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed.”
Justice Kennedy appeared to understand how naive Justice Powell’s presumption of good faith was in the 2013 iteration of the Fisher case, and in the 2003 University of Michigan Law School decision that preceded it. Indeed, Justice Kennedy wrote the opinion for the court in 2013 that remanded Fisher to the Fifth Circuit with instructions to stop deferring so much to the University of Texas.
He also wrote a dissenting opinion in the University of Michigan case reminding his colleagues in the majority that deference to academic institutions is inconsistent with strict scrutiny, which is the standard of review the court claims to be applying in this category of constitutional law.
In the apt words of Justice Samuel Alito’s opening line in his 50-page dissent in last week’s Fisher decision, “something strange has happened” between now and then.
I suspect that the “something strange” to which Justice Alito refers is Justice Kennedy’s desire to stay on the politically correct side of the culture wars in higher education. The late Justice Antonin Scalia was not shy about lambasting his colleagues on this point.
To mention but one notable example, Justice Scalia wrote in dissent to Justice Kennedy’s opinion for the court in the 2006 pro-gay rights case Romer v. Evans that “when the court takes sides in the culture wars, it tends to be with the knights rather than the villeins — and more specifically with the templars, reflecting the views and values of the lawyer class from which the court’s members are drawn.”
I also think that Justice Scalia might mention that a clear majority of Americans — 67 percent, according to a recent Gallup Poll — oppose considerations of race and ethnicity in higher education admissions decisions, and instead insist that students should be admitted exclusively on their merits.
But academic elites are indifferent to what “regular” people think, and so too are the judicial elites who just upheld the University of Texas’ blatantly unconstitutional racial preferences admissions program.
When Justice Scalia died unexpectedly in February, seemingly every court watcher who opined about the impact his passing would have on the cases still pending on the court’s docket at the time insisted that, because Justice Elena Kagan had recused herself, Fisher v. University of Texas was the one case in which his absence wouldn’t matter.
Justice Kennedy’s about face in Fisher reveals how wrong they were. After all, Justice Scalia’s final official statement on the subject, his 2014 concurring opinion in Schuette v. Michigan Coalition to Defend Affirmative Action, pointed out that the court’s “sorry line of race-based-admissions cases” permitting colleges and universities to take race into account were wrong and that those decisions were in jeopardy.
Justice Scalia is sorely missed by those who care about equal treatment under law.
Scott D. Gerber is a law professor at Ohio Northern University. His eight books include “First Principles: The Jurisprudence of Clarence Thomas.” Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
