Fisher v. University of Texas

Introduction

In one of his many treatises, the eminent scholar John Rohr (1989) points to the importance of “modernity” in the collective understanding of equality. He argued that as we progress through time, the U.S. Supreme Court becomes more socially adaptable in terms of its interpretation of race issues under the U.S. Constitution. Moreover, as he suggested, the courts should be working with policy makers, responding to the demands of the day. Rohr demonstrates his thesis through elaborate discussions and comparisons of the Court’s decisions in Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Brown v. Board of Education (1954). Referring to Dred Scott and Plessy, Rohr (1989) observes that “in these cases the Court announced principles that have long since been discredited as good constitutional law . . . To know these cases is to know a part of ourselves as a people in history” (p. 100).

This article illustrates the evolution of affirmative action qua diversity over time and shows that through the progression of time, the High Court’s decisions on diversity or affirmative action programs have become more enlightened, certainly reflecting societal norms and values. This seems evident with respect to the ruling issued by the Court on affirmative action, Grutter v. Bollinger (2003). However, when the Court agreed to hear an appeal to Fifth Circuit’s ruling in Fisher v. University of Texas at Austin (2011), which upheld the use of affirmative action in accordance with Grutter; it suggested that it might overturn Grutter—and by extension Bakke. Instead, the Court sent Fisher back to the lower court, instructing it to apply strict scrutiny to the University of Texas’ claim that its program was narrowly tailored, thereby leaving open the possibility that affirmative action, as framed by Grutter and Bakke, will not survive and that if Fisher comes back to the Supreme Court, which seems likely, it may single-handedly destroy decades of progress made around diversity in university settings, and concomitantly disdainfully rejected the values of the American people.

Importantly, this essay does not argue that the Constitution be removed from the purview of the courts, as some have argued (Kramer, 2004; Waldron, 2006), but rather that the courts exercise minimalism (Post & Siegel, 2007; Sunstein, 1999) by not passively deferring to but rather recognizing public opinion and the expertise of policy makers to cooperatively define and protect constitutional values, in this case those surrounding diversity, the significance of which was established as early as 1978 in the Bakke decision. Democratic constitutionalism represents a more viable and realistic approach to the role of the courts in a democratic society.

Background: The Bakke and Grutter Decisions ¹

In the U.S. Supreme Court’s first substantive decision on affirmative action, Regents of the University of California v. Bakke (1978), the Court was asked to determine the constitutionality of a program at the University of California (UC)–Davis aimed at increasing persons of color in its medical school. Specifically, the program reserved 16 admissions slots out of 100 for students of color. The Court’s ruling is landmark for any number of reasons. For example, it represents the first time the Court, in a plurality opinion written by Justice Lewis Powell, upheld the principle of affirmative action under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. But, just as important, the Court, in 1978, recognized the progress being made around civil rights in this nation and explicitly expressed its values around diversity. Applying an inchoate form of strict scrutiny, Powell accepted diversity as a compelling government interest. He wrote that “the interest of diversity is compelling in the context of a university’s admissions program” (Bakke, 1978, p. 314). Powell went on to write that it is

“the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. . . . The atmosphere of ‘speculation, experiment and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body . . . it is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples. (Bakke, 1978, pp. 312-313, quoting Keyishian v. Board of Regents, 1967 at 603)

The Court recognized that UC–Davis was seeking to promote the important value of diversity, and it accepted this as an important justification for the University’s reliance on racial classifications, which are suspect under the Equal Protection Clause. The Court, in effect, paid deference to the judgment and wisdom of educational administrators at least in terms of the goals of its program. The Court did not, however, accept UC–Davis’s approach to achieving its goal of diversity, because of its reliance on “quotas.” The Bakke Court, thus, concluded that while diversity serves as a compelling government interest, there may have been “less restrictive” alternatives available to achieve that goal.

The Bakke ruling provided a critical framework for the next significant ruling by the High Court on the constitutionality of affirmative action programs, particularly with respect to the value of diversity. In Grutter v. Bollinger (2003), a White woman, Barbara Grutter, filed suit against the University of Michigan’s Law School for its reliance on race in admissions. She claimed in part that her rights had been violated under the Fourteenth Amendment’s Equal Protection Clause. ² The Law School considered race among other factors such as GPA and LSAT scores in its admissions decisions. It did not seek to admit a specific number or percentage of students of color, and each applicant was considered individually. The Law School sought to enroll “a ‘critical mass’ of underrepresented minority students . . . to ensure their ability to contribute to the Law School’s character and to the legal profession” (Grutter, 2003, p. 306).

In determining the constitutionality of the Law School’s affirmative action program, the Court applied strict scrutiny, asking first if there was a compelling government interest for the program, and second, if the program was sufficiently narrowly tailored (i.e., were there alternative means to reach the goal that did not take race into account). The Court fully embraced the significance of diversity, including seeking a critical mass of students of color, in university settings as a compelling government interest. Going beyond Powell’s explication in Bakke, the Grutter Court pointed to several educational goals served by a diverse student body. For example, “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds” (Grutter, 2003, p. 330).

In addition, the Court explicitly recognized the expertise of university administrators in developing admissions policies that call for diversity, and its willingness to defer to that expertise. The Court stated that

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. (Grutter, 2003, p. 328)

Having found that diversity serves as a compelling government interest, the Court next ruled that the Law School’s use of affirmative action was sufficiently narrowly tailored. The Grutter Court reasoned that race was but one factor among many in admissions decisions and also that the decisions were individualized and holistic. ³

Taken together, Bakke and Grutter clearly illustrate the High Court’s acceptance of diversity as a compelling government interest and its deference to academic administrators; however, the actual means for achieving diversity must be flexible, individualized, and devoid of a strict numbering or fixed-point system.

Efforts by the University of Texas to Promote Diversity

The University of Texas’s efforts to promote diversity stem in large part from a legacy of discrimination by the state’s system of higher education. By the early 1980s, Texas had still not developed adequate measures to eradicate segregation or discrimination against persons of color seeking admissions into state universities. Only after decades of negotiations between federal and state officials was some progress made. Beginning in the early 1990s and up until the Hopwood decision in 1996, the University of Texas not only admitted students based on the overall academic ranking of applicants but also considered race and gender as factor; other factors included undergraduate GPA, LSATs, undergraduate major, and past work experience. The system was successful in diversifying the student body. However, the University relied on two admissions committees: one assigned to consider non-minority applicants and another to consider applicants of color. Cheryl Hopwood and three other White students were denied admission to the Law School at the University of Texas because their GPAs and LSATs were too low. Hopwood and the other applicants filed suit claiming that their test scores and grades were higher than African Americans and Latinos admitted to the program.

Both the district court of the Western District of Texas and Fifth Circuit Court of Appeals struck down the admissions policy on the grounds that it could not survive strict scrutiny under the Equal Protection Clause. The courts ruled that the use of dual admissions committees was not sufficiently narrowly tailored, because it did not allow individual applicants to be compared with the entire applicant pool. The U.S. Supreme Court denied the University’s petition for certiorari, thus leaving the appellate court’s ruling in place, which effectively barred race-conscious admissions at the University of Texas.

Recognizing the negative effects that Hopwood would have on diversity initiatives in higher education, the Texas State legislature passed the Top Ten Percent Law, which grants automatic admission to all high school seniors in the top ten percent of their class to any of the University of Texas campuses. Standardized test scores and other factors are only considered when the Top Ten Percent applicant does not receive automatic entry into their first choice of campus, program, or major. Approximately 75% of admissions to University of Texas campuses are based on the Ten Percent Law. Although race-neutral on its face, the purpose of the law was clearly to promote diversity in the student body, because high schools throughout Texas are racially segregated. Students not admitted under the Top Ten Percent Law compete based on criteria including SATs, GPA, essays, work experience, and receipt of honors or awards.

In 2003, in light of the Grutter decision, University of Texas again changed its admissions policies, allowing each campus to decide whether the race and ethnicity of an applicant would be considered, providing there is an “individualized and holistic review of applicant files” and “race and ethnicity are among a broader array of qualifications and characteristics considered” (Fisher, 2009, p. 593). In effect, race could now be considered in assessing an applicant along with the secondary criteria mentioned earlier (e.g., SAT scores; GPA, etc.).

In support of its new admission policy, University of Texas offered evidence from a study which indicated that even with the operation of the Ten Percent Law and the secondary criteria, there was not a “critical mass” of students of color enrolled at University of Texas campuses. The study found, for example, that in 2002, “90 percent of the classes with 5 to 24 students had one or zero African American students and 43 percent had one or zero Hispanic students” (Fisher, 2009, p. 593). Survey responses indicated that students of color felt “isolated” and a majority of students reported that there was “insufficient diversity in the classrooms” (Fisher, 2009, p. 593).

In short, over time, educational and political officials sought to increase diversity throughout the system of higher education in Texas. The transformation and ultimate progress came about first through intervention by federal officials but later through proactive efforts by university administrators and elected officials in Texas.

The Rulings in Fisher v. University of Texas at Austin

In April 2008, a White woman, Abigail Fisher filed suit against University of Texas at Austin claiming that its admissions policies violated her rights under the Equal Protection Clause of the Fourteenth Amendment. Because she did not qualify for admission under the top ten percent rule, she was considered for admission based on the secondary criteria. She was denied admission based on this as well and claimed that persons of color were admitted with lower qualifications. She did not argue that the University of Texas policy gave greater consideration to race as compared to the policy upheld in Grutter. Rather, she argued that University of Texas does not need a Grutter-type policy, because of the Top Ten Percent Law. She further claimed that University of Texas’s consideration of race is an unconstitutional form of “racial balancing.”

In the context of Grutter, the district court submitted the University of Texas admissions program to strict-scrutiny analysis, asking first whether it had a compelling interest in attaining a diverse student body by enrolling a critical mass of students of color. The court relying on Grutter ruled that diversity serves a compelling government interest, and the program was sufficiently narrowly tailored because it was “highly individualized,” “holistic,” and not based on a rigid, numeric formula (Fisher, 2009).

Upon appeal, the Fifth Circuit Court of Appeals upheld the district court’s decision. The appeals court acknowledged, “With a nod to Grutter’s command,” it would provide “deference to a university’s educational judgments” (Fisher, 2011, p. 232). It argued that academic “decisions are a product of complex educational judgments in an area that lies primarily with the expertise of the university,” far outside the experience of the courts (Fisher, 2011, p. 231, quoting Grutter at 328). The Fisher court went on to say that “universities occupy a special niche in our constitutional tradition,” with educational autonomy grounded in the First Amendment. As Justice Powell explained in Bakke, “[a]cademic freedom . . . includes [a university’s] selection of its student body” (Fisher, 2011, p. 231, quoting Grutter at 329 and Bakke at 312). The appeals court, thus, acknowledged the importance of diversity and the expertise of university officials in relying on it to promote educational excellence.

With reference to the specific charges that the University of Texas program amounted to racial balancing, the appeals court in Fisher concurred, in deference to the Bakke and Grutter decisions, that racial balancing is unconstitutional. The court ruled that “Attempting to ensure that the student body contains some specified percentage of a particular racial group is ‘patently unconstitutional’” (Fisher, 2011, p. 234, quoting Grutter at 329-330). However, the court of appeals found that the University of Texas program, similar to the Law School in Grutter, was not seeking to achieve racial balance and did not specify any numerical targets or goals, even in its reference to “critical mass.”

The appeals court also struck down Fisher’s charge that the university had not adequately considered alternatives such as, or in addition to, the Top Ten Percent Law. The Fisher court agreed that universities that take race into account as one factor in admissions decisions must consider race-neutral alternatives. However, quoting Grutter, it stated that “‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’ especially if the proffered alternatives would require the University to sacrifice other important interests, like its academic selectivity and reputation for excellence” (Fisher, 2011, p. 238, quoting Grutter at 339-40). The Top Ten Percent Law, which is race-neutral, is sufficient to meet the second prong of the strict scrutiny test according to the appeals court.

The appeals court also ruled that the Top Ten Percent Law alone does not work to achieve diversity. In particular, while that Law may have increased diversity throughout University of Texas campuses overall, the more prestigious campuses are less diverse. Moreover, the Law has worked to concentrate persons of color into certain traditionally “minority” programs, a form of educational segregation. The court found that students of color are heavily concentrated in such programs as social work and education, and not business administration, fields where they are traditionally underrepresented. The Fisher court thus concluded that both the Ten Percent Law and the use of race in the secondary criteria are needed.

In short, the Fisher court, in accordance with the strict scrutiny analysis and Supreme Court precedent, upheld the constitutionality of University of Texas’s admissions policies. It deferred to the expertise of both political and university officials in its ruling.

Democratic Constitutionalism—Moving Forward

Over 20 years ago, Rohr (1989, p. 131) argued that “it is not likely that members of racial groups that have been discriminated against historically will improve their lot dramatically without receiving the kind of massive support that is usually associated with political efforts” to help them. In Texas, through several iterations, the admissions policy at University of Texas was modified by political officials and university administrators to promote racial diversity on its campuses. The state Legislature passed the Ten Percent Law in an effort to increase the enrollment of students of color to its public universities. ⁴ In addition, university officials carefully crafted, with guidance from the Hopwood appellate court, an admissions program that sought to promote diversity within constitutional parameters. Then, in the wake of the Grutter decision, University of Texas added race as a single factor among a host of others to further its goal of creating a diverse student body, an admittedly important goal for any institution of higher education.

The experience in Texas indicates that despite efforts to eliminate affirmative action, policy makers, including legislators, responding to constituents and educational administrators, who understand the significance of diversity in the classroom, will continue to develop programs that take race into account in order to promote diversity. As Rohr pointed out decades ago, the courts should be working with policy makers responding to the demands of the day, to promote vital goals such as diversity in higher education.

Given the evidence supporting the significance of diversity in today’s society, it seems obvious that the U.S. Supreme Court would affirm the appeals judgment in Fisher if the case returns to the High Court, thereby upholding its precedents in Grutter as well as Bakke. In fact, even the conservative or moderately conservative Justices of the High Court have finally relented, accepting diversity as a compelling government interest, as seen in the dissenting opinions filed by, for example, Rehnquist and Kennedy in the Grutter case.

As Rohr (1989, p. 139) argued in the context of the Bakke decision, the High Court created an important “framework” to “support a politically attractive policy that was constitutionally suspect.” This framework, as he argued, should remain intact as the courts as well as public administrators analyze concerns that are ethically and morally compelling to society. But, given the current composition of the Court, particularly with President George W. Bush’s appointments of Chief Justice John Roberts and Justice Samuel Alito, who don’t appear to support the use of racial or ethnic preferences (see Rosenbloom, 2010), the expectation that the Court will defer to the compelling value of diversity is somewhat dim. If the Fisher decision is eventually overturned, college campuses will most certainly become less diverse, especially in terms of African Americans and Latinos. Such a ruling could also have implications for the reliance on diversity in other areas such as employment.

There remains, however, one ray of hope if we turn to the majority opinion, written by Chief Justice Roberts in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a case involving the desegregation of elementary and secondary schools in Seattle, Washington, and Jefferson County, Kentucky. Granted, Roberts argued in the 5-4 ruling in Parents Involved in Community Schools (2007, p. 732), that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling government interest simply by relabeling it ‘racial diversity.’” Notwithstanding, there are differences between Parents Involved and Grutter, suggesting that there is a possibility that Roberts might eventually vote to uphold the appellate court’s decision in Fisher, should the Court hear the case again. First, in writing for the majority in Parents Involved, Roberts acknowledged that, in previous Court rulings, diversity had served as a compelling government interest in university admissions. He wrote that “a government interest in student body diversity ‘in the context of higher education’” is compelling (Parents Involved in Community Schools, 2007, p. 703, quoting Grutter at 306). Thus, he may find that the University of Texas program meets the first prong of the strict scrutiny test.

Second, Roberts (Parents Involved in Community Schools v. Seattle School District No. 1, 2007, p. 703) stated that Parents Involved, unlike Grutter, involved elementary and high schools and so the case would not be “governed by Grutter.” He went on to say that the programs in Parents Involved construed diversity in a very limited manner (“White” and “non-White”) and that the “interest [in Grutter] was not focused on race alone but encompassed ‘all factors that may contribute to student body diversity’” (Parents Involved in Community Schools v. Seattle School District No. 1, 2007, p. 703, quoting Grutter at 337). Roberts argued that “in the present cases . . . race is not considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints’” (Parents Involved in Community Schools v. Seattle School District No. 1, 2007, p. 703, quoting Grutter at 330). Roberts’ further stated that the program in Grutter, unlike those in Parents Involved, was individualized and holistic.

Finally, Roberts objected to the use of specific percentages to achieve racial balance in the Parents Involved cases. Percentages, numerical goals, or targets are not an issue in Fisher as the appellate court made perfectly clear. Although the university seeks to create a “critical mass” of students of color, it has never, as with the University of Michigan in Grutter, conceptualized critical mass numerically. Thus, racial balancing is not the goal at University of Texas, and because race-alternatives had been considered, the diversity program at University of Texas would meet the second prong of the strict scrutiny test.

Given the consistent and persistent manner in which Roberts referenced the Grutter precedent in Parents Involved, it is conceivable that he may apply that precedent in Fisher if it returns to the Court, which could result in a 4-4 deadlock (Justice Elena Kagan recused herself from the Fisher case due to her involvement with the case while she was Solicitor General). A tie would result in the appellate court ruling remaining in place. In the spirit of democratic constitutionalism, the Roberts Court wrote that “this Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society” (Parents Involved in Community Schools v. Seattle School District No. 1, 2007, p. 797). Moreover, he recognized the significance of school officials’ “discretion and expertise” to achieve a diverse student population (at 797-98). It is also noteworthy that Roberts, who was in the majority in Fisher and unlike Justices Antonin Scalia and Clarence Thomas, did not offer a concurring opinion. In short, if Roberts applies his pragmatic approach to Fisher, as he did to his ruling on President Obama’s health care reform, the use of affirmative action in university admissions may survive.