In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications.
But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.
Consider two cases. In the first, a municipality constructs a public school system that segregates children exclusively on the basis of race, with majority-white children attending certain schools and minority-black children attending other schools. The school system is part of a larger effort to create a hierarchy of dominance by the majority-white citizens at the expense of non-white citizens, an effort that infects multiple aspects of public life.
In the second case, a state constructs a public system of higher education designed to meet the educational needs of its citizens. It has decreed that seventy-five percent of slots in the first-year class at its flagship university shall go to public high school students who graduate in the top ten percent of their classes. The remaining twenty-five percent of slots are allocated through a complex process that includes an individualized review of student applications—part of which, in some instances, will involve the consideration of race as a factor. As a result, it is possible (but not inevitable) that a majority-white applicant will be denied admission because of her race.
There should be no doubt that strict scrutiny applies in both of these cases—in each, the government, to prevail, must show that the use of race serves a particularly compelling interest.
Of course, the first case is Brown v. Board of Education and the second is Fisher. Both involve governmental determinations on the basis of race. But in no other way are these cases the same.
In Brown, the government’s line drawing was designed to subjugate. There can be no compelling reason for a municipality to distinguish between school children on the basis of race when the facts show its only purpose was to reinforce a systematic effort to preserve a ruling class’s dominance. The facts in Fisher, on the other hand, show nothing of the sort—the university’s effort was not a part of any kind of similar effort to entrench a ruling majority. In short, the government in both instances employed racial classifications, but in an effort to achieve substantively different ends. Why, then, should strict scrutiny be applied in the same way in each case?
To be sure, it’s important that racial classifications be subject to strict scrutiny by the courts, because, in most cases, race is irrelevant to any legitimate public policy goal. But that doesn’t mean, upon further inquiry, that all uses of race are the same. When race is used with the approval of a majority class in ways that are likely only to disadvantage its own members, as in the higher education affirmative action context, some judicial deference is not unreasonable. Members of a majority class are, after all, presumptively capable of looking after their interests through the democratic process.
In the end, Fisher confirms Justice O’Connor’s observation in Grutter v. Bolinger: “Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it.” It remains to be seen whether, after Fisher, there are other contexts in which this proves to be the case.