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.
In 2008, Abigail Fisher, who is white, was denied admission to the University of Texas under a baroque process the university has evolved in an attempt to make taking some account of race compatible with court's rulings regarding racial preferences.
These rulings have said, among much else, that race or ethnicity must not be the "defining feature" of a student's application.
The Supreme Court said Monday that the Fifth Circuit was too deferential to the university: The lower court did not properly apply strict scrutiny to judging whether the university's use of race was sufficiently narrowly tailored.
This clarified the fact that clarity is incompatible with the Supreme Court's prior decisions carving out a higher education exemption from the Constitution's marvelously clear guarantee of equal protection of the laws.
In an opinion concurring with the majority's conclusion that strict scrutiny was required but not applied to Texas' use of race, Justice Clarence Thomas says of "racial engineering":
There is no compelling governmental interest in whatever educational benefits supposedly flow from racial diversity that must be achieved by racial discrimination.
Thomas should tell the chief justice that the way to stop discrimination on the basis of race is to stop pretending that strict scrutiny of such discrimination somehow makes it something other than what it is.
Will may be reached by email at georgew...@washpost.com.