Editor’s note: Richard Lempert submitted an amicus brief in this case on behalf of The University of Texas at Austin and chaired the University of Michigan Law School admissions committee that wrote the affirmative action policy approved by the Supreme Court in Grutter v. Bollinger.
In 1996, in the case of Hopwood v. Texas, the Fifth Circuit Court of Appeals took the unusual step of ignoring Supreme Court precedent. Anticipating that the high Court was prepared to outlaw affirmative action, the Circuit Court did it themselves, forbidding the University of Texas, and other state schools within their jurisdiction, from using race to advantage minorities in admission. The Texas legislature, responding to a dramatic falloff in the number of African Americans and Latinos admitted to the selective Texas schools in the wake of Hopwood, passed what has come to be known as the Texas 10% plan. Under this plan, students graduating in the top ten percent of their high school classes were guaranteed admission at the Texas state school of their choice. Although this “race neutral” admissions procedure did not restore the level of African American or Latino heritage students at the University of Texas at Austin to pre-Hopwood levels, it did allow UT-Austin to keep its African American enrollments from falling much below 4%, and as the number of the state’s high school graduates who were of Latino origin burgeoned, the proportionate representation of Latino students on campus began to return to pre-Hopwood levels. The mechanism that helped maintain a minority presence on campus was, however, deeply ironic. It depended, and still depends, on the de facto segregation of most Texas high schools to ensure that that top ten percent graduates from many Texas high schools will include many minorities.
The Fifth Circuit in Hopwood proved to be less than prescient. When the Court in 2003, in Grutter v. Bollinger, again considered affirmative action, it reaffirmed rather than reversed its earlier ruling in Bakke that the educational benefits of a racially and ethnically diverse student body was a sufficiently “compelling state interest” to justify attention to race in college admissions even though the Fourteenth Amendment typically bars governmental action based on racial classification. Indeed the Grutter Court went further than Bakke, for it suggested in dicta that there were state interests beyond diversity that counseled in favor of allowing colleges and universities to engage in race-sensitive admissions. On this score, Justice O’Connor, who wrote for the Court, referenced two amicus briefs, one filed by a number of Fortune 500 companies and the other by military leaders. Each brief argued that to optimize success in their spheres, a substantial pool of well-trained minority college graduates was a necessity. Apart from the decision, the most important part of Justice O’Connor’s opinion was her holding that that although strict scrutiny applied in assessing affirmative action programs, as it did whenever governmental racial classifications were in issue, courts should defer to expert university judgments on the relationship between diversity and a school’s educational mission and, so long as quotas or giving points for race were eschewed, whether a university’s approach to achieving diversity was narrowly tailored to achieving its legitimate goals.
After Grutter, Hopwood was no longer controlling law in the Fifth Circuit, which freed schools within its jurisdiction to again implement race-conscious admissions. One school which took advantage of this new opportunity was UT-Austin. UT Austin had long used holistic admissions process to fill the slots that remained after top 10% applicants secured their places. The school decided it should continue with this policy, but allow race to also figure in its holistic applicant evaluations. (Race thus became one of seven elements to be considered in determining points on one subscale of a six element scale that eventually determined the holistic score.) A number of considerations may have figured in UT-Austin’s decision. One was a self-study which showed that in about 90% of its discussion size classes (between 5 and 24 students) there was at most one, and often no, African American students. Asian and Latino students were also often absent or alone in these smaller classes. The University may also have been concerned about sheer numbers because there was a strong sense that the 10% plan has never yielded a critical mass of African American students, and the proportionate representation of African American and Latino students on the Austin campus was far below their population proportions. A concern, directly stemming from low numbers in classes and on campus was a sense that racial minorities suffered educationally and psychologically because they felt isolated.
Perhaps the most decisive factor, however, was the way the 10% plan worked. It is a one dimensional standard—class rank is all that matters. No special strengths a student has are considered. As students in the state became more familiar with the 10% plan, an increasing proportion of the school’s admissions slots went to 10% qualifiers—it reached as high as 81% before the Texas Legislature allowed the school to cap plan admissions at 75% of the available slots, which transformed it into to a 7% or 8% plan depending on the year. Considering only class rank posed particular problems with respect to minorities because 10% admissions strongly favored minorities who had attended segregated high schools, and excluded most minorities who attended more integrated or largely white high schools. The latter, however, seemed likely to have had very different experiences and perspectives than most 10% plan minorities. They also were likely to have benefited from more challenging high school educations, and to judge by their admissions test scores often appeared to be among the academically strongest minority applicants. Texas, in short, sought diversity within diversity; it wanted more minorities who had experienced integrated educations, and it wished to increase the number of minority students who promised to be exceptionally able.
Texas’s introduction of race as an element of holistic admissions, when it showed it could assemble a class with more than de minimis minority representation without explicitly considering race was an invitation to a lawsuit. Abigail Fisher, who had failed to qualify for top 10% admission, accepted the invitation. She sued UT-Austin, arguing that she was unconstitutionally disadvantaged in the holistic admissions process by preferences available to minorities but unavailable to her. On an agreed upon record, the District Court hearing the case found that the Texas plan more or less paralleled the Michigan Law School approach approved in Grutter, and granted the University summary judgment. On appeal by Fisher, the Fifth Circuit affirmed.
When the Supreme Court took the case in Fisher 1, some thought the Court might be ready to overturn Grutter, but in a 7-1 decision that has all the earmarks of a compromise, the Court reversed only one element of Grutter. It held that contrary to what Justice O’Connor had written, courts should not defer to university judgments in determining whether a race conscious admissions program was the most narrowly tailored means to effectuate a university’s legitimate diversity interests. Rather strict scrutiny should be applied using the same rigorous standards that courts employed in other areas where the constitutionality of racial classifications were at issue. The case was remanded to the Fifth Circuit with instructions to review their holding with this new understanding of the strictness of the scrutiny they were to employ.
The Court took care to say that just as strict scrutiny should not be strict in theory but feeble in fact (which appeared to be their view of the O’Connor mandate) so it should not be strict in theory but fatal in fact. Nevertheless, with rare exceptions strict scrutiny has been fatal in fact, particularly when the scrutinizer has been Fisher 1’s author, Justice Kennedy. Kennedy in a number of cases, including Grutter, has said that the 14th Amendment does not necessarily forbid attention to race in government decision making, but he has never found a race-conscious program that overcame his view of strict scrutiny’s burdens. Hence, it is probably fair to say that Kennedy expected one of two outcomes on remand to the Circuit Court. One possibility was a decision by the Fifth Circuit to remand the case to the District Court to allow an evidentiary hearing on whether UT Austin could only achieve its legitimate educational goals by allowing race to figure in its holistic admissions program. The other outcome that Kennedy is likely to have contemplated would have been a decision by the Circuit Court that to the extent that Texas’s 10% plan was not in itself sufficient to fully realize the school’s educational interest in diversity, the plan could be sufficiently augmented by other approaches, such as stronger minority outreach, that did not require classifying applicants by their race or, at least, that Texas had failed to show that this could not be done. The Fifth Circuit panel, however, reaffirmed its original holding, stating, despite the University’s advocacy of a District Court remand, that there was sufficient information on the record before them, to decide that even under the new standard the University’s program passed muster. An implication is that the Supreme Court, which had the same record before it, should have realized that its strict scrutiny standard had been met. It is not a pretty picture, but I, at least, find it hard not to see in its decision a court that is thumbing its nose at the Supreme Court, and at Justice Kennedy in particular.
Since Justice Kennedy is the likely swing vote in this case, many observers, myself among them, think it likely that Abigail Fisher will prevail in round 2, with the major question being whether the Court will find in her favor without remanding or whether it will remand with an instruction that the case be returned to the District Court for a full evidentiary hearing. If the Court does find for Fisher, the implications for other schools that use affirmative action would depend on the Court’s opinion. If the number of minorities admitted to Texas through the 10% plan is a crucial consideration, the fallout from Fisher is likely to be limited since percent plans cannot be used by graduate and professional schools, nor will they do much to boost minority enrollments in states that do not have large numbers of majority minority high schools. If, however, the opinion sees strict scrutiny as imposing a particularly onerous test, including placing on universities the burden of showing that they have already tried almost every way of increasing minority enrollments and nothing has worked, then the fallout may be both wide and deep.
Other outcomes are, however, possible. On one extreme, several amicus briefs filed on behalf of Fisher, with rather unsubtle hints of support in Fisher’s own brief, urge the Court to bite the bullet and declare affirmative action admissions unconstitutional in all circumstances. At the other extreme the ACLU, as amicus, would like the Court to bite a different bullet and hold that the original intent of the framers of the 14th Amendment was to erase badges of slavery, meaning that whites like Ms. Fisher have no grounds for invoking the Amendment. The ACLU’s position has no chance of being adopted. The Court is similarly unlikely to make Fisher the case that forbids affirmative action, but this outcome is within the realm of possibility.
There is also a serious standing issue in this case. Ms. Fisher’s standing was always questionable since the university introduced evidence which strongly suggests, if it does not conclusively prove, that her application was sufficiently weak that she would not have been admitted even if no holistic admissions slots had been taken by minorities advantaged by race. Moreover, since Fisher 1, Ms. Fisher attended and graduated from Louisiana State University, so she could no longer secure the relief she originally wanted. The Fifth Circuit majority indicated that they thought Fisher lacked standing, but they thought that in deciding Fisher 1 the Supreme Court had implicitly decided the standing issue and they were foreclosed from disputing that determination. However, since she has now graduated from college, Fisher’s stake in the outcome is considerably different from what it was when she originally brought suit. Moreover, a court, including the Supreme Court, may dismiss a case for lack of standing at any stage. UT-Austin, in its brief to the Supreme Court, spent several pages urging the Court to do just this.
Even if a Court decision favors the University, it is unlikely that supporters of affirmative action will enjoy the full fruits of victory. Justice Kagan, a former Harvard Law School dean, and an almost certain vote for the University’s position has recused herself from participation in the case because while she was Solicitor General her office was involved in the litigation. Assuming, as most do, that the only possibly unknown vote is Justice Kennedy’s, the Court would be split 4-4 if Kennedy sided with UT-Austin’s. Texas would then prevail because when the high Court is equally split the judgment appealed from stands. However, the decision of the Court is short and simple, “affirmed by an equally divided court.” So even if a decision in favor of the University comforts supporters of affirmative action, it will have no precedential value.