"Compelling National Interest" or "Pressing Public Necessity"?

Larry Purdy, one of the attorneys for Barbara Grutter in the 2003 Grutter v. Bollinger case, argues here that the Supreme Court should accept Abigail Fisher’s petition for certoriari and use the Fisher case to overturn Grutter.  The earlier Supreme Court decision accepted the use of race-conscious admissions policies at the University of Michigan Law School, where Barbara Grutter had been denied admission. Similarly, Abigail Fisher was rejected from the University of Texas at Austin in a race-conscious process. The Fifth Circuit Court of Appeals followed the Grutter decision in accepting UT Austin’s rejection of Ms. Fisher on the basis of race.

By a margin of 5 to 4, the Supreme Court upheld the use of race in admissions in Grutter primarily on the grounds of “compelling national interest.” Curiously, the author of the majority decision, Justice Sandra Day O’Connor acknowledged that the reason the national interest had to be “compelling” was that treating individuals differently because of race was indeed a problem for American legal principles.  This was a curious kind of legal logic, admitting that discrimination is inconsistent with equal treatment under the law, but claiming that it is ok if only your reasons are good enough.  It is uncomfortably reminiscent of the 1944 Korematsu v. United States decision, in which Justice Hugo Black justified the internment of American citizens of Japanese ancestry because of “pressing public necessity.”

As I point out in this law review article on the Grutter decision, O’Connor was also sufficiently cognizant of the problem of differentiating among people on the basis of race that she claimed that doing so to serve this “compelling national interest” could only be a temporary remedy. Therefore, she stated, race-conscious programs would lno onger be necessary in twenty-five years, presumably because strategic discrimination will have ended all variations among groups by 2028. This is where the empirical difficulties come in. If affirmative action policies are supposed to diminish achievement differences among racial and ethnic groups, they haven’t started to do so yet. And there is no evidence that they will do so in the foreseeable future.

I have posted here a chart of critical reading and math SAT scores. The gaps among the groups in the twenty-three year period from 1986-87 to 2009-10, precisely the time when not only affirmative action but other national strategies such as No Child Left Behind aimed at eliminating group differences, did not diminish. In fact, some of the gaps increased. Notably Asians have almost caught up with whites in reading, and will pass whites if the trend continues.  In math, Asians have been ahead of all other groups throughout the period, and their lead is growing. The scores of Hispanics, on the other hand, have gone down slightly in reading and remain flat in math. Since Asians and Hispanics are the fastest growing racial or ethnic categories in the United States, this suggests the gaps in the future will be larger among more people.  Moreover, because Asians are both the highest scorers and the smallest in numbers, policies that attempt to increase the representation of the underrepresented will negatively affect Asians much more than anyone else. Maybe Grutter resembles Korematsu in a number of ways.