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Tom Goldstein Publisher

Posted Fri, October 14th, 2011 9:38 am

Fisher v. University of Texas

Today in the Community we are discussing affirmative action in the context of the petition for certiorari in Fisher v. University of Texas.  This is our weekly topic of special interest to law students, sponsored by Bloomberg Law.

Steve Wermiel has a terrific introduction to the case and how it relates to the Court’s affirmative action jurisprudence here.  Affirmative action – and more broadly the use of race in government decision making – is an issue about which many people have strong feelings, personally and morally.  At SCOTUSblog, we’re concerned with how the Supreme Court should and will address the issue under the Fourteenth Amendment.  We hope you will participate.


  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss how rigorously the Supreme Court should review affirmative action programs under the Fourteenth Amendment.

    • Stuart Taylor – 2 Promoted Comments

      In my recent reply I neglected to mention that Professor Richard Sander of UCLA Law School is coauthor of our planned amicus and of a related book on which we are working.

      Stuart Taylor

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether you think that the Supreme Court will grant certiorari in the Fisher case, including to limit or overrule its prior decision in Grutter v. Bollinger.

    • Aaron Tang – 0 Promoted Comments

      Notwithstanding my personal views on the matter, I think this question boils down to whether the five justices who either dissented in Grutter (Scalia, Thomas, Kennedy) or have expressed enmity towards the decision (Roberts, Alito) think that Fisher is the right vehicle to start dismantling university affirmative action policies. For reasons unique to the Texas plan, I think these five Justices are likely to answer that question with a “yes.” Specifically, because Texas’s Top 10 Percent plan (which is not challenged in the petition) is a race-neutral program that furthers racial diversity, the Court can strike down the express use of race in filling the non-Top 10 percent slots while making clear that race-neutral programs like the Top 10 Percent plan (that have the effect of furthering diversity) are still appropriate. In other words, reviewing Texas’s plan would allow the Court a unique opportunity to reverse race-conscious programs while still extolling the virtues of diversity in general (as advanced by race-neutral programs).

    • Brian Davis – 1 Promoted Comment

      That’d be the only justification for granting cert. I can agree in principle with Edith Jones that the University’s rating process for selecting non-top-10% admits leaves too much to admission officals’ subjective discretion. But I can also flip the top-10%-auto-admit argument on its head. Texas is a strong legislative State. It’s perfectly reasonable to believe that the Legislature, upon enacting and more recently modifying the top 10% statute without addressing the rest of the admissions process, fully cognizant of Grutter in the meantime, reached the optimum available compromise in allocating scarce resources. If that’s correct, then what ethnically “fairer” result would the Court expect to achieve by collapsing public undergrad higher ed (Grutter) into public contracting (Adarand) as a matter of federal Equal Protection Clause doctrine? Fisher has a beef. But it’s not a quota.

    • Curt Levey – 1 Promoted Comment

      I agree with Aaron’s analysis if not his definition of “race-conscious.” Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race. Grutter already requires universities to give “serious, good faith consideration” to the former – “race-neutral alternatives” – and the five Justices can’t be happy that the Fifth Circuit and trial court effectively gutted that requirement.

      The middle ground approach should be particularly appealing to Justice Kennedy. Although his vote is not need to grant cert, the four conservative Justices won’t vote to take the case unless they’re convinced Kennedy’s likely controlling opinion will be a step in the right direction. There’s at least three reasons to believe that it will.

      One, as Roger notes, the evidence indicates that most of the nation’s leading universities are treating Grutter’s limits on racial preferences as cosmetic rather than substantive, so any post-Fisher change on the ground can only be for the better. Two, the Court is likely to strike down UT’s current race-based system, an outcome which will push universities away from explicit reliance on race even if the language in Kennedy’s opinion is no better than O’Connor’s language in Grutter. And three, the post-O’Connor Court has already moved towards a less deferential approach to the use of race in admissions in Parents Involved v. Seattle (striking down race-based admissions in two public school systems) and, at very least, a Fisher decision will serve to clarify that the shift applies to higher education as well.

      In sum, the four most conservatives Justices are likely to take Fisher because, both in the law and on the ground, the decision will provide at least an incremental shift away from the explicit use of race in admissions.

    • Kevin Russell – 0 Promoted Comments

      Like most others, I think this is a likely grant as well. To me the interesting question is whether the anti-affirmative action majority will even try to reconcile its decision with Grutter, but instead take a much harder (and clearer) line against such programs. In the end, I suspect that there are four votes to simply hold that any program designed to advantage a particular racial group is unconstitutional, whether it if facially discriminatory or not. But Justice Kennedy’s opinion in the Seattle school cases suggests that he was not (at least at that point) willing to go that far. Whether he will change his mind when directly confronted with the question is the big open question in my mind.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, address whether the University of Texas system in particular should be held unconstitutional.

    • Stuart Taylor – 2 Promoted Comments

      The Court should put teeth into “narrow tailoring” of affirmative action in admissions, and Fisher provides an excellent opportunity to do so. Our reasons are largely empirical. We are submitting an amicus brief pointing to important research about racial preferences since Grutter and Gratz.
      –Before-and-after comparisons show that contrary to Grutter’s stated intent, universities have used it as a green light to make racial preferences larger and more mechanical.
      –Very strong evidence has emerged in legal education, science education, and academic training that large racial preferences harm their intended beneficiaries and undermine learning and performance by causing them to earn very low grades, with other bad consequences.
      –California’s Proposition 209 created a gigantic natural experiment in the effect of banning racial preferences in the nine-campus University of California system. The results included big jumps in black and Hispanic grades, tenacity in science majors, and higher graduation rates. By the 2nd year of implementation, the UC system graduated more black students than ever before. The Hispanic numbers were even higher. The UC system became more integrated. And minorities became more likely to accept offers of admission from Berkeley, UCLA, and most other UC campuses.
      The University of Texas racial preferences are enormous – even larger than t other schools. The 5th Circuit decision in Fisher made a mockery of narrow tailoring by endorsing preferences in pursuit of racial diversity in every classroom and racial proportionality indistinguishable from the “racial balancing” that Grutter condemned. The Court should reverse.

  • Tom Goldstein – 0 Promoted Comments

    My own view is that Fisher is a likely grant. Justice Kennedy dissented in Grutter. He and the other conservative Justices have strong views that the use of race in government decisionmaking should be strictly limited. In other cases presenting the opportunity to correct what they perceive as serious errors of the O’Connor era (such as cases involving campaign finance and partial-birth abortion), they have stepped in.

  • Roger Clegg – 1 Promoted Comment

    I also think this is a likely grant. My organization, the Center for Equal Opportunity, will be joining in an amicus brief next week, urging the Court to grant review.

    In addition to the legal problems with the Fifth Circuit’s decision, and the fact that a majority of the justices have misgivings (to put it mildly) about this sort of discrimination, the timing is right. We’re over one-third of the way to the 25-year expiration date on Grutter, and the Court should take stock to see if schools have gotten the message that racial preferences are to be used sparingly (they haven’t and they aren’t, at least at many schools).

    And the latest census data underscore how increasingly multiethnic and multiracial the nation (and individual Americans, for that matter) are becoming, making it also increasingly untenable for public institutions to be sorting people by skin color and what country their ancestors came from. For example, we now commonly see Asians being displaced by Latinos in admissions: What’s the justification for THAT?

  • Tejinder Singh – 1 Promoted Comment

    I’d like to get the Community’s thoughts on one particular facet of this case, which has to do with the significance of the Top Ten Percent program.

    In this case, the petition (as well as Judge Garza in concurrence below, as well as the judges dissenting from denial of rehearing) argue that Texas’s racially conscious scheme is unconstitutional, in part, because it only results in a small increase in minority enrollment, and therefore is not narrowly tailored to achieve the state’s interest in diversity. The argument goes that the vast majority of admitted African American and Hispanic students are admitted through the Top Ten Percent program, and that the policy for the remaining students–which considers race alongside other variables and does not assign any fixed value to racial minority status–results in only a small marginal bump in minority enrollment, which proves that it’s not necessary or effective, and therefore not narrowly tailored to the goal of promoting diversity. These folks base their argument on Parents Involved, in which the Court struck down racially conscious student assignment plans in public schools. It did so, in part, because the districts adopting the plan could not show that the plans resulted in a significant increase in diversity. The Court reasoned that “the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications.”

    In essence, the petitioner argues that because Texas has adopted the race-neutral Top Ten Percent plan as a mechanism to get diversity into the classroom, and because that plan has largely succeeded, further race-conscious measures are unconstitutional because they are not narrowly tailored to the goal of increasing diversity.

    Here’s what I’m curious about: if Texas didn’t have the Top Ten Percent program, then would the racially conscious program be more constitutional?

    It seems like the answer shouldn’t be “yes,” because that holding would create a disincentive for institutions to adopt race neutral measures alongside race-conscious ones, lest they be exposed to liability for the latter. In a real way, the petitioner’s argument punishes Texas for doing a good thing: for achieving diversity through the Top Ten Percent program, Texas subjects itself to liability for also maintaining a race-conscious policy for other students. But it also seems like the answer shouldn’t be “no,” because whether Texas had adopted it or not, the Top Ten Percent program is still a race-neutral way to get diversity in the classroom, and strict scrutiny seems to require that institutions adopt, or at least seriously consider, those alternatives.

    I’m interested to get the Community’s thoughts on this issue. I’d also love to hear what people have to say about a related question: If the petitioner wins her argument that the Top Ten Percent program constitutes an effective race-neutral mechanism to ensure diversity in universities, then is every university affirmative action program in the country doomed because of the existence of that alternative?

    • Curt Levey – 1 Promoted Comment

      Tejinder, Texas adopted the Top Ten Percent (TTP) plan only because it was prohibited from explicitly using race by the Fifth Circuit’s Hopwood decision. Once that prohibition was nullified by Grutter, UT moved quickly to meet the political demands to reinstate racial preferences, while REDUCING reliance on the TTP plan. The only reason TTP survived at all was that it had already developed its own constituency.

      Thus the situation at UT was very different from one where a university maximizes its use of race-neutral alternatives and uses racial preferences only to the degree necessary to achieve a critical mass of minorities. I agree that such a university should not be punished and I’m confident that the Supreme Court will make that clear.

      To answer your second question, Fisher would not automatically doom every race-based admissions system in the country. The effectiveness of race-neutral alternatives varies from university to university and state to state. The degree to which race-based admissions would be imperiled by a UT loss depends, in practice, on the degree of judicial deference and the allocation of the burden of proof in determining whether a school engaged in the “serious, good faith consideration of workable race-neutral alternatives” required by Grutter.

  • Rick Nagel – 1 Promoted Comment

    First, let me express my gratitude for the re-opening of the blog to the SCOTUSBlog community. What a pleasure it is to read cogent, non-ad-hominem comments on divisive issues such as those involved in Fisher v University of Texas at Austin.

    Though not a lawyer, I taught Law and Society at Franklin High School in Seattle for 36 years and commented extensively here in 2006 on Parents Involved in Community Schools v Seattle School Board. While quite familiar with the law involved in Grutter, Parents Involved, and Fisher, I will confine my remarks to “the realities on the ground” as I experienced them at Franklin as they relate to the issues of racial preference and judicial deference to the decisions of educators. More than arid formalism is required when “hard cases” are likely to “make bad law,” in the words of Justice Holmes. Particularly when, as he also said, “the life of the law has been not logic, but experience.”

    Franklin is predominantly non-white and, to a considerable extent, the extracurricular academic face of the school was the mock trial team that I coached. Should I not consider in selecting the team the fact that if were there few or no African Americans (who composed around 40% of the student body) on the team –while the basketball team was all Black –that the stereotype of black physical superiority and concomitant intellectual inferiority would be reinforced every time the team was honored at an assembly (we won nine state – and one national – mock trial championships)? And not consider as well likelihood that the program itself would be stereotyped as one for Asian American and white honors kids, with the result that African American students would avoid trying out? It’s not just formal legal segregation that has the potential to “damage the hearts and minds” of young people “in a way very likely never to be undone.”

    I saw the faces of the students whose prodigious efforts to qualify for a place on the team I was evaluating and could not do dignitary harm either to white students who had earned a place on the team by rejecting them, or to Black candidates by patronizing them (I often told my African American students to “beware of white folks bearing gifts”).

    This meant that I had to recruit, counsel, tutor and engage in remedial efforts- often over a period of a year or two- to ready diverse candidates for the team (in not a few cases the beneficiaries of this outreach were white). Only when two candidates were virtually indistinguishable in their capacities to contribute to the team’s success did race become a factor.

    The problem in Parents Involved and Fisher is that the discretion granted was abused. In Parents Involved, students were denied places in programs (e.g. a Biotechnology Academy) offered in only one high school because of their race and allowed to change their racial designation to get in their desired schools (a provision of benefit only to students who were multi-racial), all for no marginal benefit in terms of diversity or “critical mass,” at the district’s most popular high schools while leaving three overwhelmingly Black schools untouched. Fisher involves the University of Texas running wild with the discretion granted it by the district Court and the Fifth Circuit panel, piling Grutter on top of a ten-per-cent plan that created sufficient campus diversity but left some majors and individual classrooms imbalanced!

    If the Court concludes that this nation’s universities will not in good faith to follow the dictates of Grutter, the 17 years left on the 25-year reprieve granted by Justice O’Connor to race-conscious admissions will be rescinded, and Chief Justice Robert’s seemingly simplistic “the only way to end racial discrimination is to stop discriminating on the basis of race” will be the law of the land because the discretion granted university administrators has been recklessly abused.

    But let me close on a hopeful note. A few days ago I called my seven-year-old grandson, Zane, to tell him that I was that there were two Jewish players on the Texas Rangers, Ian Kinsler and Scott Feldman. Jews of my generation (I will soon turn 70) grew up with a noticeable lack of Jewish athletic role models, a fact that made us be particularly proud of Sandy Koufax. His response was, “why do I need to know that?”

    He really doesn’t, and may university administrators soon realize that they don’t need to know the ethnic, religious, or ethnic identities of candidates for admission, either.

  • David LeRoy – 4 Promoted Comments

    It seems likely the Court will take this case in light of the animosity towards basing programs on race in light to their Seattle ruling. In this particular case, Texas adopted the TTP program which is, by all accounts, race-neutral and achieves the State interest of diversity in state college admissions in 81% of the freshman student body. This indicates that a race-neutral policy can achieve a State’s interests. Therefore, it begs the question why the State should introduce race as even a tangential factor for the remaining 19% of the freshman student body. Understanding, in light of Gutter, that college admissions offices CAN consider race, among other factors, I also do not fathom why they SHOULD consider race (among other factors) when they already have a race-neutral program that is effective.
    As some have mentioned, when this type of program has been instituted, the results have not necessarily resulted in student success. They may increase diversity, but at what cost? Regardless, to me at least, the introduction of race as a factor smacks of some unstated need to reach a quota. I believe the Court will take this case given the views of both Alito and Roberts in this area. A final decision will most likely come down to Kennedy and his decision. Personally, I do not think Kennedy is the rubber-stamp fifth vote for conservatives in this case. To me, the equal protection of the law under the 14th Amendment protects individuals allegedly wronged by State programs not because they happen to fall into some statistical category, but based on their individual case. In Fisher, someone was “wronged” because of their inclusion in a statistical category. The fact they were in a non-protected class in the traditional sense should make little difference. But, that is my personal view.

  • Matthew Boddum – 0 Promoted Comments

    The major problem with the Grutter decision is that it presupposes that the University of Michigan has a constitutional right to run an elite program. We have a disparate treatment provision in the constitution but we do not have anything that protects an elite universities insatiable desire for power and prestige. The university should be forced to choose whether it wants an elite program whose disparate impact excludes minroties or a more modest academic program whose standards allow for more racial diversity. The university can adopt a policy to choose only students who fall in the middle of the applicant pool. The university doesn’t want to make this choice but I think the constitution loses all force if it does not compel the university to choose.

  • Matthew Boddum – 0 Promoted Comments

    I am starting to think that, if SCOTUS takes this case, Kennedy will vote to effectively overturn Grutter because Grutter requires the use of individual racial classifications. Kennedy said in his opinion announcement for Parents Involved that “to be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society”.

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