Strict in theory, but accommodating in fact?

• Author: Varol, Ozan O.

1. INTRODUCTION

   The origins of the strict-scrutiny test have been the subject of much academic debate. (1) According to some accounts, the roots of the test can be traced to the Supreme Court's decision in Korematsu v. United States, a widely criticized opinion that upheld the internment of Japanese Americans during World War II. (2) In that case, the Court held that "the most rigid scrutiny" would govern all challenges under the Equal Protection Clause (3) to the government's classification of individuals according to their race. (4) Analyzing the equal-protection challenge in a highly deferential manner to the government, (5) the Court held that the government's interest in preventing espionage and sabotage by the Japanese justified its internment of Japanese Americans during wartime. (6) Justice Murphy vehemently dissented from the Court's "legalization of racism" under the auspices of heightened scrutiny. (7)

   Since Korematsu, the Court expanded the use of strict scrutiny from its application in the context of racial classifications. In the Equal Protection Clause context, strict scrutiny now also governs classifications on the basis of national origin (8) and state classifications on the basis of alienage. (9) In addition, strict scrutiny applies to infringements on certain fundamental rights (10) under the Due Process and Equal Protection Clauses--including the right to marry, (11) to control the upbringing of one's children, (12) to vote, (13) to access the courts, (14) and to travel within the United States. (15) Governmental infringements on the First Amendment rights to freedom of speech and freedom of association also are subject to strict scrutiny. (16)

   To survive strict scrutiny, the government bears the heavy burden of satisfying two elements: one relating to the government's ends and the other to its means. (17) As to its ends, the government must show a compelling interest in drawing a suspect classification or infringing on a fundamental right. (18) As to its means, the government must prove that it adopted narrowly tailored means to achieve that compelling interest. (19) A government action subject to strict scrutiny is unconstitutional if it fails either element of this test. (20)

   Strict scrutiny, by definition, is strict--and for good reason. For example, for racial classifications, the test is intended "to 'smoke out' illegitimate uses of race" by the government. (21) The test presumes that whenever the government classifies persons according to their race, its decisions are inherently suspect. (22) To serve its inquisitorial function, the test cannot accept blank assertions by the government for why it needs to use race in its decisionmaking. Rather, through the strict-scrutiny test, the courts ensure that "'the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.'" (23) The reason for this searching inquiry, no doubt, is the wound that government-sanctioned racial discrimination has inflicted on this nation throughout its history. (24) When our government classifies us by race, courts ordinarily assume foul play is at work and put the government to its burden to show why its action must be upheld. (25)

   At times, the Supreme Court has been so demanding in its application of the strict-scrutiny test that commentators questioned if any government action could survive the test. (26) This prompted the Supreme Court justices to counter--in at least eleven individual and majority opinions--that strict scrutiny is not "'strict in theory, but fatal in fact.'" (27) So long as the government satisfied its burden under strict scrutiny--albeit a highly demanding one--the Court would uphold the government action as constitutional.

   But times have changed. At least in certain contexts, strict scrutiny is strict no more. In its attempt to remedy the perceived rigidity of the strict-scrutiny test, (28) the Supreme Court overcorrected. The pendulum has now swung in the opposite direction. In majority and dissenting opinions in Grutter v. Bollinger, (29) Johnson v. California, (30) and Parents Involved in Community Schools v. Seattle School District No. 1, (31) the Supreme Court diluted the strict-scrutiny test with a strong dose of deference (32) to the government, creating a deferential version of strict scrutiny that bears no resemblance to its original form. out of these decisions emerges a test that is strict in theory, but accommodating in fact.

   This Article is an analysis and critique of deferential strict scrutiny. The Article reveals inconsistencies in the Court's use of run-of-the-mill strict scrutiny and deferential strict scrutiny, which have left government actors uncertain about the constitutionality of their conduct and the lower courts in a quandary as to which version of strict scrutiny to apply and when. The Article argues that, if unconstrained, this newly minted version of strict scrutiny--which allows the government to avoid an exacting constitutional inquiry puts at risk the very liberties that strict scrutiny was designed to protect.

   In Part II, the Article discusses the Supreme Court's decision in Grutter v. Bollinger. (33) Grutter concerned an Equal Protection Clause challenge to the University of Michigan Law School's use of race in its admissions decisions. (34) The Court upheld the law school's admissions criteria and, in so doing, deferred to the law school on the questions of whether its stated interest in achieving diversity was compelling and whether its admissions criteria was narrowly tailored. (35) Part III argues that Grutter's reasoning was faulty and that its deference to the law school cannot be justified under any of the rationales asserted by the majority. It explores the bounds of Grutter's deference, concluding that Grutter may have created a dangerous precedent of deferential strict scrutiny that may extend far beyond the confines of higher education.

   The remaining sections of the Article contrast Grutter's deferential analysis to other cases from the Supreme Court's equal-protection jurisprudence. Part IV discusses the Supreme Court's non-deferential analysis in United States v. Virginia, which addressed an equal-protection challenge to the male-only admissions policy of the Virginia Military Institute, another higher-education institution. (36) Part V contrasts Grutter to Johnson v. California, where the Court refused to defer to prison officials in an equal-protection challenge to a prison policy requiring the segregation of inmates according to their race to prevent violence. (37) Part VI analyzes Parents Involved in Community Schools v. Seattle School District No. 1, where the Court struck down two school districts' student-assignment plans that relied on race to determine which public schools the students could attend. (38) Although the four-justice plurality in Parents Involved attempted to confine Grutter's deference to the context of higher-education institutions, five justices extended at least part of Grutter's holding to K-12 schools. (39) With this extension, Part VI argues, deferential strict scrutiny has gained momentum and will be invoked in future Supreme Court opinions.

2. GRUTTER V. BOLLINGER AND DEFERENTIAL STRICT SCRUTINY

   Grutter v. Bollinger was a class-action case against the University of Michigan Law School challenging the law school's use of race in its admissions criteria. (40) The plaintiffs asserted that race was the predominant factor in the law school's admissions policy, which put non-minority applicants at a significant disadvantage in the application process. (41) This, the plaintiffs contended, constituted state-sanctioned racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. (42) The law school countered that it used race as one of many factors in its decision-making process, which it asserted was narrowly tailored to achieve its compelling interest in recruiting (43) a "critical mass" of minority students to construct a diverse student body.

   The district court applied strict scrutiny and held that the law school's race-based admissions criterion was unconstitutional. (44) The court reasoned that the attainment of a racially diverse student body was not a compelling state interest and, even if such interest were compelling, the law school had not used narrowly tailored means to achieve that interest. (45)

   The Sixth Circuit reversed the district court. (46) The Sixth Circuit held that achieving a diverse student body was a compelling interest under binding Supreme Court precedent and that the law school's use of race as a "potential plus factor" in its admissions criteria was narrowly tailored to serve that interest. (47)

   In a 5-4 decision, the United States Supreme Court affirmed the Sixth Circuit. (48) The Court purported to apply strict scrutiny to the law school's use of race in its admissions decisions, noting that the policy would survive the constitutional challenge only if the race-based classification was "narrowly tailored to further compelling governmental interests." (49) In describing the strict-scrutiny test, the Court emphasized that the test is intended to "'smoke out illegitimate uses of race'" (50) and that the determination of the admissions policy's constitutionality is "'the job of the court,'" not of the law school. (51) But the Court failed to note, perhaps deliberately, that the law school would bear the burden of satisfying the requirements of strict scrutiny.

   The Court first discussed whether the law school's stated interest in the educational benefits that flow from diversity was a compelling state interest. (52) On this point, the Court held that "[t]he Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer." (53) Despite this deference, the Court reassured its skeptics that its scrutiny would be "no less strict." (54)

   The Court explained that...