The outcome of Fisher v. University of Texas, holding that the holistic consideration of characteristics such as race that would otherwise violate the Equal Protection Clause of the Fifth and Fourteenth Amendments is constitutional, is one I support on a policy basis.  In other words, I believe that a diverse student body provides inherent virtues.

But “stuff I believe” is hardly a valid legal test, any more than stuff you (or anyone else) believes. And indeed, it wasn’t the test applied by the Supremes, because the law requires that UT’s race-cognizant admissions pass muster under strict scrutiny.  Before you scream that strict scrutiny is too high a bar, remember that it’s the same test if the same characteristics were used, but in the opposite direction. Would a college admissions policy favoring whites only be constitutional? Strict scrutiny applies there too. Happy now?

But Hans Bader raises a problem that might easily be obscured by the fact that UT’s policy is on the side of the angels.

The Court conceded that under its own past precedents, “A university’s goals cannot be elusory [sic] or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” It then upheld the use of race to promote vague “educational values” whose achievement was unproven (and which would probably not be measurable to begin with) as a “compelling government interest”:

“On the first page of its 2004 ‘Proposal to Consider Race and Ethnicity in Admissions,’ the University identifies the educational values it seeks to realize through its admissions process: the destruction of stereo­types, the ‘promot[ion of] cross-racial understanding,’ the preparation of a student body ‘for an increasingly diverse workforce and society,’ and the ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’”

While these rhetorical explanations may suffice to the choir, they are vague and squishy. What they are not is clear and precise justifications of the government’s “compelling interest” in a manner sufficiently measurable to be susceptible to judicial review.  Yet, the Court held they were “sufficiently concrete” to satisfy the first prong of the strict scrutiny test. Even there, the Court’s language belied the problem: if scrutiny is strict, then “sufficiently” isn’t good enough. Either it passes muster or not, and as soon as wiggle room is introduced into strict scrutiny, it’s no longer strict, but strictiness.*

One potential problem in Fisher is the difficulty in putting into concrete words the value derived from diversity.  While the justification provided, and accepted, by the Court smacks of insubstantial rhetoric, it isn’t because the concept is inadequate but because neither UT nor the Court were able to find words to express the concept in concrete terms.  Then again, when words fail, it’s not a good sign. And even the majority recognized it was screwing with the edges of rhetoric here.

But while Hans’ problem includes the social engineering aspect of the case, he raises a strict scrutiny issue that extends beyond Fisher and into turf where it becomes more disconcerting.

This watered-down version of blind deference masquerading as strict scrutiny is disturbing, because strict scrutiny isn’t just the test used by courts in deciding whether to uphold or strike down the government’s use of race (under the Equal Protection Clause). It’s also the test used to uphold government restrictions on speech (under the First Amendment).  Although the First Amendment’s text does not contain a “compelling interest” exception, the Supreme Court has allowed speech to be restricted by the government in the name of promoting a compelling interest, under a strict scrutiny test. So rulings like this one making a mockery of “strict scrutiny” could also threaten free speech rights in the future, since free speech is also subject to “strict scrutiny” limits.

And he’s got a point. A very important point.  That same test, strict scrutiny, is the one applied to free speech under the First Amendment as well.  It’s tempting to shrug and distinguish the application by chalking it up to things we like versus things we don’t like, but that’s not going to cut it with free speech. It’s the speech we don’t like that needs protection the most, and for that reason, it’s critical that the “strict” part of strict scrutiny mean what it says.

There are, of course, some easy distinctions. The Fisher case was an Equal Protection case, not a First Amendment case. But does that suffice to provide a sufficient conceptual ledge to keep strict scrutiny from sliding down the rabbit hole? Not likely. When it comes to a rationale for regulating fundamental constitutional rights, the ones where the Constitution says something otherwise clear, like “Congress shall make no law,” and the Court add in the unwritten parenthetical, “(except when we say it can),” we’re already skating on very thin doctrinal ice.

This is where the thinking challenged tend to fall back on “loopholes” like “rights aren’t absolute.”  It’s a mantra that mindlessly covers up all goofy ideas, but its acceptance stems from the Court’s own squishiness on the subject. Why not interpret the First Amendment as written, rather than as a mere precatory notion, to be molded around exceptions?  When it comes to clarity, “no law” is about as straightforward as it gets. And yet, the Supreme Court has held that “no law” means “no law (except when we say it can).” Can you blame those whose constitutional scholarship comes from fortune cookies?

But there may be solace to be found in the manner in which the Supreme Court has played with the First Amendment, strict scrutiny notwithstanding. They have crafted categorical exceptions, such as defamation, true threat and child pornography, which constitute unprotected speech. Whether this is principled or not is a separate question, but the Court has held that when speech falls outside a categorical exception, it is protected speech.

Even though it may be awful speech, “low value” speech as those who are applying for the job of censor-in-chief like to call it, the sort of speech that brings tears to the eyes of people who wish with all their heart that it would never be uttered, it remains protected speech.  And in the application of the test at hand, strict scrutiny, to protected speech, the Court has proven steadfast in its application of strict, rather than strictiness, scrutiny.

Is this a principled approach? Sadly, no. Strict can’t mean different things in different contexts. Hans’ point is solid and troubling, even though the outcomes may comport with policy that suits my feelz. And the words that might rationally explain the distinction elude me.

*See Truthiness:

truth·i·nessˈtro͞oTHēnis (noun informal)

-the quality of seeming or being felt to be true, even if not necessarily true.