On Monday, the Supreme Court thrashed around in the thicket it has cultivated and fertilized for more than three decades. In a case coming from the University of Texas at Austin, it instructed a lower court to square this circle:
Because the 14th Amendment guarantees “equal protection of the laws,” universities wishing to ignore that guarantee in order to use racial classifications in admissions must be accorded “some” deference in their exercise of academic freedom. But the court thinks suspensions of constitutional guarantees are kind of important, so the court has decided to pretend that the guarantee is somehow not really being truncated. So an academic institution’s use of race must withstand “strict scrutiny,” meaning it must be narrowly tailored to achieve a compelling government interest.
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.