George F. Will: A web still tangled

Published: June 26, 2013
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What a tangled web the court weaves when first it practices to deceive itself about what it is doing to the equal protection guarantee. The 14th Amendment stops guaranteeing equal protection when the court defers to the “experience and expertise” of public universities in fine-tuning the racial and ethnic compositions of their student bodies in order to attain a “critical mass” of certain government-approved minorities.

In 2008, Abigail Fisher, who is white, was denied admission to the University of Texas under a baroque process the university has evolved in an attempt to make taking some account of race compatible with court's rulings regarding racial preferences. These rulings have said, among much else, that race or ethnicity must not be the “defining feature” of a student's application.

The Supreme Court said on Monday that the Fifth Circuit was too deferential to the university: The lower court did not properly apply strict scrutiny to judging whether the university's use of race was sufficiently narrowly tailored. This clarified the fact that clarity is incompatible with the Supreme Court's prior decisions carving out a higher education exemption from the Constitution's marvelously clear guarantee of equal protection of the laws.

In an opinion concurring with the majority's conclusion that strict scrutiny was required but not applied to Texas' use of race, Justice Clarence Thomas says of “racial engineering”: There is no compelling governmental interest in whatever educational benefits supposedly flow from racial diversity that must be achieved by racial discrimination. Thomas should tell the chief justice that the way to stop discrimination on the basis of race is to stop pretending that strict scrutiny of such discrimination somehow makes it something other than what it is.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP