Contrary to what President Obama told members of the press a few days ago, he’s not the least bit reticent about profiling Americans on the basis of race, sex and ethnicity. That much is evident from the amicus brief his Department of Justice filed with the U.S. 5th Circuit Court of Appeals in the Fisher v. Texas case that was settled before the U.S. Supreme Court last month. In the brief, Mr. Obama’s DOJ argued in favor of maintaining race-conscious policies at the University of Texas at Austin. That would be because the university has “a compelling interest in securing the educational benefits of diversity,” according to the DOJ. Therefore, it is permissible for elite universities to violate the Equal Protection Clause of the 14th Amendment and to discriminate (and yes, profile) on the basis of race so long as they operate with an eye toward achieving greater diversity. This is essentially what a majority on the high court has been saying since Justice Lewis Powell authored the majority opinion in the 1978 Bakke decision, which preserved race-based affirmative-action policies.
Although the diversity rationale underpinning the use of race in college admissions was recodified in Grutter v. Bollinger, the 2003 ruling included important caveats and nuances that are frequently overlooked in media coverage. For starters, Grutter outlaws quotas while uplifting race-neutral policies. Moreover, Grutter only allows for race to be used in a “narrowly tailored” fashion to achieve diversity. Even then, race-conscious policies are only permitted with the expectation that they will give way to colorblind policies over time. That’s why the president’s attorneys, and his allies in the media, carefully sidestep any detailed discussion of the Grutter ruling where these provisos would be noted. They also make it a point to ignore the Supreme Court’s concurrent 2003 ruling in Gratz v. Bollinger, which overturned the quota system in place at the University of Michigan’s undergraduate program.
This matters because the high court’s recent actions could be setting the stage for a momentous ruling over the next few months that puts a definitive end to race and gender preferences. The 7-1 ruling in Fisher vacating the Fifth Circuit’s decision to uphold preferences fits with the national mood and makes it more difficult for Team Obama to deliberately misconstrue Grutter.
“The Fisher decision is a great reminder that the Grutter decision — especially when taken with the Gratz decision — was not an open ticket to use race preferences,” says Jennifer Gratz, the plaintiff in Gratz v. Bollinger. Yet, this is what Mr. Obama has done since Day One of his administration. It is difficult to overstate the separation between the president’s rhetorical attacks on “profiling” in the aftermath of the George Zimmerman/Trayvon Martin verdict and the substance of his own legislation.
Consider, for instance, Section 342 of the Dodd-Frank bill, which creates at least 20 new Offices of Minority and Women Inclusion. Each office includes a director who is charged with developing standards for “equal employment opportunity and the racial, ethnic, and gender diversity of the workforce and senior management of the agency; increased participation of minority-owned and women-owned businesses in the programs and contracts of the agency, including standards for coordinating technical assistance to such businesses; and assessing the diversity policies and practices of entities regulated by the agency.”
How do administration officials expect to enforce this provision without profiling? The answer is they won’t. By definition, Section 342 is not race or gender neutral. Neither are many other key provisions of the president’s health care bill or his stimulus bill.
But there is good reason to think that the country as a whole is much more post-racial than the Obama administration. At the state level, substantial majorities of Americans across party lines have been voting to end preferential policies. The process began with Proposition 209 in California, which amended the state constitution in 1996 to prohibit government officials from discriminating on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting. Other states have followed suit in the past few years with constitutional changes modeled after Proposition 209. They include Washington state, Arizona, Nebraska, Oklahoma, Florida and Michigan.
Unfortunately, there are movements afoot to overturn these state initiatives at the behest of an organization called “the Coalition to Defend Affirmative Action, Integration, Immigration Rights and the Fight for Equality By Any Means Necessary.” In California, legislation has been introduced to amend the constitution and effectively gut Proposition 209. In Michigan, the 6th Circuit Court of Appeals struck down that state’s civil rights initiative. But under Grutter’s “strict scrutiny” standards it will be highly problematic to reintroduce quotas now that race-neutral policies have been set in motion in both states. Meanwhile, the Supreme Court has agreed to hear an appeal of the Michigan Civil Rights Initiative this coming fall, which could lead to an unambiguous ruling that ends preferential treatment. On the surface, the case is about the rights of the voters to pass initiatives in a democratic fashion without judicial intrusion. But Ms. Gratz sees room for a broader ruling. That’s why she strongly suggests the appellants prepare themselves for a “tear down this wall” moment. In his concurring opinion in Fisher, Justice Antonin Scalia implied that there are enough votes on the court to overturn Grutter and to permanently close off any wiggle room for racial considerations that run counter to the 14th Amendment. Since the Grutter decision was written with an expiration date in mind for admissions policies that fall short of colorblind standards, it would seem that time has arrived.
Kevin Mooney is an investigative reporter for the Franklin Center in Washington.
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