Affirmative Action vs. Equal Protection

A few minutes into yesterday’s oral argument in Fisher v. University of Texas — a case involving affirmative action — Justice Breyer impatiently blurted out “I want to know whether you [Fisher’s lawyer] are asking us to overrule Grutter,” referring to Grutter v. Bollinger, a 2003 decision which upheld University of Michigan Law School’s race-conscious admission program.

Heading into yesterday’s argument, Breyer, Sotomayor, the media, and all of the nation’s professional diversity mongers were freaking out about the possibility that the Court might overrule Grutter, which has has attained a Roe-like status as a sacred cow. Unfortunately, Fisher’s lawyer played it safe, reassuring the Court’s liberals that they didn’t have to overrule Grutter

But the truth is that Grutter — which holds that “diversity” is a “compelling state interest” that trumps Equal Protection — is a travesty or, as our own John Yoo recently wrote, a “blemish” on our constitutional law. The Equal Protection Clause provides “no State shall deny to any person within its jurisdiction the equal protection of the laws.” If the framers of that amendment wanted to make an exception for “diversity,” they could have found the words to do so. 

For my detailed analysis of the Supreme Court argument, and why Grutter must go, see my piece on NRO’s Bench Memos.