YET ANOTHER federal appeals court has issued an opinion on whether a state university may use race in admitting students. This time the U.S. Court of Appeals for the 6th Circuit–which handles cases from Michigan, Ohio, Kentucky, and Tennessee–has approved race-based admissions at the Michigan Law School.
The Sixth Circuit is the fourth appeals court to rule on the question, following the 5th, 9th, and 11th. It is an understatement to say, as lawyers would here, that “there is a conflict in the circuits.”
The Supreme Court has said that state-sponsored racial classifications must be held to strict scrutiny, a most demanding test. Under strict scrutiny, a racial classification is unconstitutional unless “narrowly tailored” to achieve a “compelling state interest.”
The circuits have typically begun their rulings with those statements of law. Then they disagree. Is “educational diversity,” including race and ethnicity, a compelling interest, one that can justify discrimination? The 5th Circuit (in the Texas Law School case) has said it’s not. The 9th and now the 6th Circuits have said it is. That’s a big disagreement, since almost every university with a race-based admissions program invokes “diversity” as the justification.
There is another disagreement: The 6th Circuit and the 11th Circuit, which last year voided race-based admissions at the University of Georgia, are at odds over what constitutes “narrow tailoring.” The 6th Circuit says Michigan’s use of race is “narrowly tailored,” while the 11th Circuit found that Georgia’s was not.
Barbara Grutter is the woman who challenged the Michigan Law School’s admissions policy. She will now ask the Supreme Court to overrule the 6th Circuit. The Supreme Court has stayed serenely above the fights over race-based admissions, declining to accept appeals in the 5th and 9th Circuit cases. Michigan is likely to be the case the court takes. Certainly it should be.
The court is more inclined to take a case when there is a conflict in the circuits. Thanks to the 6th Circuit’s ruling, that criterion is satisfied, redundantly. The court also asks whether the issues raised are of national importance. Who would not say “yes” in this instance?
There is another question the court asks: Was the decision by the lower court wrong? At least four justices (and it takes four votes to accept a case) are likely to think–for good reason–that the 6th Circuit was wrong.
The majority rested its decision on an opinion written by Justice Lewis Powell in the 1979 Bakke case. Justice Powell contended that achieving educational diversity–and thus taking race into account–is a compelling interest. No other justices voiced agreement with Justice Powell, yet the 6th Circuit engaged in a close, not to say magical, reading in concluding that the Powell opinion amounted to “a holding” of the court, meaning it had the support of five justices. And because it did, said the 6th Circuit, we, as a lower court, are obligated to adhere to it.
The common-sense reading of Bakke, however, is that only Justice Powell embraced the diversity rationale. At best, whether or not diversity is a compelling interest is an open question, one the court should now address.
What should be embarrassing to supporters of diversity-based preferences is that the 6th Circuit uncritically accepted Justice Powell’s diversity argument and thus its notorious weaknesses, including racial stereotyping, in which individuals are regarded as fungible members of their racial groups. The 6th Circuit, 23 years after Bakke, made no independent argument for the diversity rationale. Nor did it attempt to constrain the adverse impact of race-based admissions (read: discrimination) by insisting on serious “narrow tailoring.”
Here, too, Justice Powell proved influential. He said race could be used as a “plus” in the admission process but never indicated how much of a plus it might be. Nor, following him, did the 6th Circuit. But it is in the plussing–and its magnitude–that racial discrimination occurs. In the Michigan case, those of the “right” race or ethnic background with a grade point average of 3.25 to 3.49 and an admissions test score of 164 to 166 were five times as likely to be admitted as those with similar qualifications but of the wrong race.
“Michigan’s plan does not seek diversity for education’s sake,” wrote Judge Danny Boggs in a powerful dissent. “It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration.”
It’s time for discrimination in the name of diversity to stop. Or rather, to be stopped. And that is a job for the Supreme Court.
Terry Eastland is publisher of The Weekly Standard.
