Media accounts I’ve seen have tended to suggest that the Supreme Court had found that “diversity” is a compelling interest, sufficient to justify overriding the Constitution’s ban on racial discrimination. For example, the Wall Street Journal’s report stated: “For 45 years, the Supreme Court has recognized a limited exception to that rule for university admissions, one based on the schools’ academic freedom to assemble classes that support their educational mission. Diversity was a compelling interest, the court had found.”
But the Supreme Court did not itself find that diversity was a compelling interest. Rather, it deferred to universities’ claims that diversity was a compelling interest. A court defers to someone else when it says that it may have a different opinion on the matter itself but it will allow the opinion of the person or entity in question to control because of their expertise. So, for example, under the now moribund doctrine of Chevrondeference, the Court would defer to an agency’s interpretation of the statute it administers, even if the Court would have interpreted the statute differently.
Thus, for example, in Grutter v. Bollinger the Court said: “The Law School has a compelling interest in attaining a diverse student body. The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” (Italics mine). So diversity is a compelling interest only because the university says it is.
Deferring to an agency or a university on the question of what policies best serve a compelling interest is one thing; deferring on the question of what constitutes a compelling interest is another, much bigger, thing. But that is what the Court has done up to now.
But no longer. As the majority opinion today noted: “The universities’ main response to these criticisms is ‘trust us.’ They assert that universities are owed deference when using race to
benefit some applicants but not others. While this Court has recognized a “tradition of giving a degree of deference to a university’s academic decisions,” it has made clear that deference must exist ‘within constitutionally prescribed limits.’”