Racial Preferences and the Folly of ‘Strict Scrutiny’

By Jonathan Bean  |  Posted: Thu. January 7, 2016, 9:04am PT

The Supreme Court recently heard oral arguments in Fisher v. University of Texas as it again prepares to apply the constitutional standard known as “strict scrutiny” to racial preferences in college admissions. Opponents of racial preferences of course hope the court will rule that the standard bars such preferences. But even if it does (which is unlikely), nothing will change very much. “Strict scrutiny” has a twisted history that cannot—and should not—resolve issues of fundamental civil rights. The real standard ought to be absolute nondiscrimination.

Necessity is the mother of invention. In 1944 a court majority deemed the strict-scrutiny standard “necessary” in order to uphold the internment of Japanese Americans during World War II. It did so while stating that racial discrimination in general is “suspect” and, to pass constitutional muster, must serve a “compelling governmental interest,” which the majority found in the case of internment. Justice Frank Murphy vigorously dissented “from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”.....Later, Congress passed the color-blind Civil Rights Act of 1964, which prohibited racial discrimination of any kind. But the court rejected the clear legislative intent of the act (color-blind law) when it invented “diversity” as a loophole for universities to circumvent the guarantee of equal protection (Bakke, 1978)......

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