...the Court has lost sight of the fact that...the Equal Protection Clause "is to prevent the [government] from purposefully discriminating between individuals on the basis of race." Affirmative Action Aftershocks

The legal landscape of the Equal Protection Clause is only now beginning to feel the aftershocks of the constitutional earthquake that shook a generation’s worth of jurisprudence when a bare majority of the U.S. Supreme Court held that an applicant’s race could be a factor in college admissions despite the Fourteenth Amendment.

When the High Court announced the landmark Grutter v. Bollinger, 123 S. Ct. 2325 (2003), decision in late June, constitutional observers, including the Center for Individual Freedom, did not know quite what to make of the majority opinion. (Read "Benign ‘Strict Scrutiny’?") At least on its face, the majority, led by Justice Sandra Day O’Connor, applied the longstanding stringent constitutional standard known as strict scrutiny in judging whether the University of Michigan Law School could prefer certain applicants based upon their favored races consistent with the Equal Protection Clause. At the same time, however, the majority’s conception of strict scrutiny seemed to be but a shadow of the "searching judicial inquiry" that had proven in past Supreme Court cases to be not only "strict in theory, but [also] fatal in fact."

In short, the strict scrutiny applied in Grutter bore little resemblance to a generation’s worth of cases instructing that such exacting review is necessary in order "to ‘smoke out’ illegitimate uses of race." Rather, the majority held that "[n]ot every decision influenced by race is equally objectionable" and stated explicitly that "[s]trict scrutiny is not ‘strict in theory, but fatal in fact.’" Under this reformulation, it was unnecessary for the Grutter majority to conduct a "detailed judicial inquiry to ensure that the personal right to equal protection of the laws ha[d] not been infringed." Instead, the five justices simply found that "‘good faith’ on the part of a university is ‘presumed’ absent a ‘showing to the contrary,’" even though the same university stood accused of illegally and unconstitutionally discriminating on the basis of race in violation of the Fourteenth Amendment.

Now, nearly five months after the initial earthquake, the aftershocks to the Grutter case are exposing how that decision may have triggered a seismic shift in the meaning of strict scrutiny as applied to racial discrimination cases brought under the Equal Protection Clause.

First, it has become clearer that the Grutter majority’s decision to "defer[ ]" to a university’s "educational judgment that [racial] diversity is essential to its educational mission" — while supposedly applying strict scrutiny, no less — provides broad discretion and poses virtually no limit to favoring certain applicants based solely upon their race. For example, the very institution at issue in the Grutter case, the University of Michigan, announced in its Michigan Alumnus publication this fall that it had developed a "new undergraduate admissions policy … in response to the June 23 U.S. Supreme Court rulings." This new policy, however, did not reduce the consideration of an applicant’s race, rather, the "new process requires applicants to provide more information about … non-academic factors, including … race and ethnicity."

According to the University, the High Court’s rulings "said race can be used as an admission factor if it is done in a manner that is flexible, holistic and individualized." Thus, Grutter’s abandonment of the "searching judicial inquiry" that was the standard under strict scrutiny has led colleges and universities across the country to the perverse conclusion that even more reliance on race is permissible so long as those preferences are subject to no hard-and-fast rules. It now appears this constitutionally-approved discrimination will be all but permanent under the Court’s rationalization that it could be "25 years from now" before "the use of racial preferences will no longer be necessary."

Second, given the justices’ refusal this week to review another race-based affirmative action challenge — this one involving racial preferences in the government contracting arena — it now appears that Grutter did, indeed, signal that strict scrutiny has become far less strict when it comes to affirmative action programs challenged under the Fourteenth Amendment.

Specifically, the Court declined to hear a case in which the federal appellate court below upheld Denver’s race-conscious affirmative action program for public contracting because the city "had demonstrated strong evidence from which an inference of past or present discrimination could be drawn." (emphasis added.) This decision by the U.S. Court of Appeals for the Tenth Circuit constitutes yet another substantial departure from the longstanding exacting nature of strict scrutiny review because the court failed to require Denver to actually prove the existence of discrimination, rather it was enough that the city had raised an "inference of past or present discrimination" to justify its continued reliance on racial preferences in government contracting.

What’s more, the Tenth Circuit actually reversed the placement of the constitutional burden by imposing it on those seeking to vindicate the equal protection principle. According to the Tenth Circuit’s decision, it was not the city that had to prove the constitutional necessity of considering race, but rather the challengers who had to "introduce credible, particularized evidence to rebut [Denver’s] initial showing" that its race-based affirmative action program was legally and constitutionally proper. As stated by Justice Antonin Scalia in a strongly worded dissent from the denial of certiorari: "With regard to the burden of proof, then, the Tenth Circuit got it exactly backwards."

This week’s refusal by the justices to reverse such a dramatic departure from strict scrutiny review under the Equal Protection Clause is but the first post-Grutter aftershock with its epicenter at the Supreme Court. Nevertheless, since seven justices — only Justice Scalia and Chief Justice Rehnquist recorded their dissent — allowed the Tenth Circuit’s decision to stand, as the dust begins to clear it appears that in the wake of Grutter the Court has lost sight of the fact that the "central purpose" of the Equal Protection Clause "is to prevent the [government] from purposefully discriminating between individuals on the basis of race."

November 21, 2003
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