The Supreme Court this week decided Fisher v. University of Texas. It did not decide, as many had expected, what the future affirmative action in American higher education would be. Instead, the Court punted, putting off for a future day any definitive ruling on the rules of engagement for affirmative action.
In a nutshell, rather than rule on the merits of affirmative action, seven of eight Justices simply held that the lower court had not applied the correct legal standard, and sent the case back for reconsideration. Two justices, Clarence Thomas and Antonin Scalia, made it clear they would end all race-conscious affirmative action right now. One justice, Ruth Bader Ginsburg, made it clear she would keep the law exactly as it now stands, under which affirmative action is permissible. Six justices are still playing it close to the robe, waiting for another day.
The Fisher case arose against the backdrop of the peculiar history of affirmative action in Texas. In 1996, in a case entitled Hopwood v. Texas, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that led to the temporary end of affirmative action in Texas. In Hopwood the court struck down the University of Texas Law School’s affirmative action program, holding that the pursuit of diversity in education was not a "compelling governmental interest" and that the use of race and ethnicity by the Law School violated the 14th Amendment’s Equal Protection Clause. Hopwood was interpreted by the Texas attorney general as effectively banning all race-conscious admissions programs in all of the state’s public universities and colleges, at all levels of higher education.
In 1997, responding to Hopwood, the Texas legislature enacted "The Top 10 Percent Law," mandating that any student finishing in the top 10 percent of his or her high school class be granted automatic admission to any Texas state university. The purpose of the law was to enhance the diversity at public universities in Texas. Although on its face the law was race-neutral — it simply imposed a mathematical threshold that guaranteed admission to the top 10 percent of all high school students — it worked to modestly enhance diversity, because so many Texas high schools were predominantly populated by students of only one race.
The immediate need for this system ended, however, in 2003 with the Supreme Court’s decision in Grutter v. Bolinger, upholding as constitutionally permissible the University of Michigan Law School’s aspiration to enroll a critical mass of minority students. Grutter, along with its companion case, Gratz v. Bollinger, formed a pair of 14th Amendment bookends that for the last 10 years had marked the boundaries of what was permissible and impermissible in affirmative action in admissions.
The Grutter and Gratz decisions built on the views of Justice Lewis Powell in the Supreme Court’s first higher education affirmative action decision, Regents of the University of California v. Bakke, decided in 1978, in which Justice Powell authored a compromise opinion that applied a rigorous legal standard known as "strict scrutiny" to affirmative action, a standard that requires that a university’s use of affirmative action be justified by a "compelling" justification, such as the achievement of a diverse student body, and employ a mechanism to achieve that end which was "narrowly tailored." For Justice Powell, this requirement meant that the admissions process had to be holistic, not a mechanistic quota designed to achieve levels of diversity that mirrored the racial and ethnic demographics of the general population. Grutter, which upheld the Michigan Law School’s affirmative action program, held that college could employ a "holistic" approach to admissions calculated to achieve a "critical mass" of minority students within a student body, based on what Grutter recognized as a compelling interest in diversity. Gratz, in contrast, struck down Michigan’s undergraduate admissions program, because it was mechanistic, not holistic, actually assigning fixed numerical points to students based on their minority status. This rendered the undergraduate program too rigid and quota-like, and in the view of the Court, unconstitutional.
Now we come to Fisher itself. The plaintiff, Abigail Fisher, applied to the University of Texas at Austin in 2008, but was denied admission. She instead went to Louisiana State University. Fisher was in the top 12 percent of her high school class, and thus could not benefit from the Texas 10 percent regime, but was instead relegated to competition for the remaining seats in the freshman class admitted outside the 10 percent system. In the year she applied, approximately 81 percent of the class at UT was filled by the 10 percent system, leaving Fisher as one of the applicants for the remaining 19 percent of the class. Fisher alleged that she was denied admission because Texas used the sort of racial and ethnic preferences approved in the Michigan Grutter ruling to add additional diversity to the Texas student body in that remaining 19 percent of the class, claiming that her academic record was stronger than the records of minority students who were admitted over her.
Texas disputed Fisher’s assertion, stating that under the holistic approach to admissions it employed to fill the final portion of its class, Fisher could not prove she would have been admitted, even if Texas had not used race and ethnicity as plus factors to enhance diversity. Fisher in turn argued that whether or not she could prove that she would have been admitted to Texas but for her race, she still was entitled to participate in an admissions program that was not tainted by unconstitutional race discrimination. Since the 10 percent system already increased racial diversity at Texas, Fisher argued, Texas could not engage in piling on, seeking yet additional diversity in rounding out the profile of the student body.
Fisher did not launch a wholesale challenge to the Grutter ruling, but instead framed her case in a more measured manner, arguing that whether Grutter was right or wrong, it ought not apply when a state has demonstrated that a race-neutral alternative exists, such as the 10 percent system. In response, Texas argued that the 10 percent system did not achieve sufficient diversity, either quantitatively or qualitatively, to vindicate its compelling interests in achieving a more diverse student body.
This week's opinions from the Supreme Court did not resolve the issue. The seven-Justice majority opinion of Justice Anthony Kennedy interpreted the lower court ruling in the case, by the U.S. Court of Appeals for the Fifth Circuit, as failing to conscientiously apply the "strict scrutiny" test. Instead, as the majority saw it, the lower court had merely required that the University of Texas demonstrate that its decision to reintroduce race as a factor in admissions be made "in good faith." This "good faith" standard, the majority held, was inconsistent with the demands of Bakke, Grutter and Gratz, and therefore the Supreme Court remanded the case back to the Fifth Circuit to apply the correct standard.
Many of us will now be parsing the various opinions in Fisher sentence by sentence for additional clues as to where the Supreme Court may eventually be heading with affirmative action in higher education. Here are a few preliminary thoughts.
Abigail Fisher’s lawyers, as previously noted, did not seek an outright overruling of the Bakke / Grutter / Gratz line of cases. Are there any hints to be gleaned from Fisher as to what the future of that line of precedent will be? Justice Kennedy’s opinion included this critical yet cryptic sentence: "We take those cases as given for purposes of deciding this case." Note the careful wording: He did not say "we reaffirm those cases." He only said that the Court would "take” the cases “as given” "for the purposes of deciding this case," leaving open the possibility that the Court would not take those cases as given for the purposes of deciding a future case.
There is more. Justice Kennedy’s opinion noted the mandate of Grutter that judges defer to the educational judgment of university educators regarding the benefits that flow from a diverse student body: According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” that the university deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter.
Defenders of affirmative action may seek some solace in this passage. But the opinion of Justice Kennedy then goes on, in a critical section, to describe the issue on which universities should not receive deference — the decision that race-conscious affirmative action is necessary to achieve the goal of a diverse student body: The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the university’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity.
In short, it will now remain open, in the remand of the case in Fisher, and in any future challenges to affirmative action brought anywhere else, for the opponents of affirmative action to argue that the means employed are not "holistic" within the framework of Grutter, or more critically, may not be necessary, when there are race-neutral alternatives, such as the 10 percent system, that will work just as well.
There are additional clues to where the Court may be heading that may be found in the oral argument in the case, conducted last October, two related phrases rose to prominence in that argument.
The first, “critical mass,” described the ends that Texas sought to achieve through its admissions policies, the achievement of a critical mass of minority students in its student body. That phrase comes directly from Grutter. The second phrase, “holistic admissions,” describes the means by which this critical mass was to be achieved: the employment of a flexible, individualized examination of each prospective student’s application, in which multiple factors, including racial and ethnic identity, are included in the admissions decision mix.
During the course of the oral argument the more liberal justices on the Court repeatedly sought to frame the issue as whether the existing principles of Grutter were to be displaced simply because Texas had adopted its 10 percent system. Framed this way, these more liberal justices could make a decent case in favor of Texas, for while some additional diversity was generated by the 10 percent rule, it was not overwhelming by any means, they suggested, and Texas might plausibly argue that it still needed to do more. Moreover, as Justice Ginsburg noted, while the 10 percent rule was race-neutral in its surface math, it was not race-neutral in its underlying motivation, for the Texas legislature had adopted it in the pursuit of diversity, as a clever end-run around a federal appeals court ruling that had for a brief window of time prohibited all race-conscious affirmative action in the state. And ironically, as Ginsburg observed, the 10 percent system only worked to enhance diversity because housing patterns and school zones in Texas (as in many places in the country) are so racially segregated that many schools are almost entirely of one race or ethnic group.
As an ideal, the holistic affirmative action admissions program advanced by Texas, by the majority of voices within American higher education, has a certain humanistic beauty that is almost irresistible. At its best, the system mutes the stigma that has at times been attached to affirmative action, a stigma heavily emphasized by Justice Clarence Thomas in his writings on the issue, in which the subliminal message sent to the minority beneficiaries of race-conscious admissions is, "You really don’t deserve to be here on your own merit, but we are letting you in out of guilt and compassion for past wrongs done to those in your group, and the lingering effects of those wrongs." Holistic affirmative action admissions programs flip this, sending instead the positive message: "You do deserve to be here on your own merit, and that merit includes what your identity and experiences will bring to enrich the collective educational
experience for all on the campus, and in turn what that enriched experience will do for the ultimate betterment of society."
Nonetheless, today’s decision by the Supreme Court, which focuses on whether race-conscious admissions truly remain necessary, was presaged by the skeptical questions from a number of justices in oral argument in the case, suggesting that they may regard "critical mass” as really a "hypocritical mask." These skeptical justices repeatedly challenged Texas and its co-defenders of affirmative action to explain when a critical mass is achieved.
None of the advocates would supply a crisp answer. Donald Verrilli, the solicitor general for the administration of President Obama, gave it a noble try, eloquently defending the pursuit of critical mass with the argument that our national "strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union." To enrich the educational experience of students at American universities, to expose them to a variety of fellow students from diverse races, ethnic groups, religions, cultures, nations, or life experiences, there must be enough of each group in the mix to both make the cross-exposure meaningful. In turn, a critical mass of representation is required to ward off the damage to minority students that might ensue from the tokenism and isolation incident to small numbers.
The skeptics, however, seemed unmoved by the lofty articulation of the goal and unpersuaded by the logic of its execution. Again, much of what surfaced today in the Court’s formal opinion was presaged during the oral argument. Chief Justice John Roberts repeatedly asked how the Supreme Court could do its job of deciding whether the pursuit of a critical mass was constitutional if Texas refused to explain how it knew when it had achieved critical mass. Moreover, since Texas relied entirely on an applicant’s self-description of racial or ethnic identity, how did Texas even know what the identity of its enrolled students were? If an applicant is 1/8 Hispanic, Roberts asked, did Texas regard it as ethically permissible to check the box “Hispanic” on the application? What if the student was 1/32 Hispanic? Justice Scalia wanted to know if it was a classroom-by-classroom determination. In a deeply uncomfortable moment, Texas conceded that it did not need to prime the pump to enroll more students of Asian descent, as their numbers were already robust, a point that the skeptics saw as approaching a system of racial spoils. Justice Alito thus asked whether critical mass varied by ethnic group. Why, he asked, did Texas lump together all Asian Americans? Was Texas confident, he continued, that it had a critical mass of Filipino Americans? Cambodian Americans?
What the skeptics seemed to be suggesting was that "mass" was indeed a "mask," a euphemism employed to avoid what has long been constitutionally forbidden, the simplistic use of race for race’s sake, a "mirror" conception of equal justice in which, in rough-and-ready terms, critical mass is not deemed achieved until the representation of minorities in institutions such as the University of Texas generally approximates their representation in the polity as a whole. Thus Justice Alito asked pointedly, whether the definition of critical mass in Texas would be different from the definition in neighboring New Mexico.
If the skeptics were troubled by meaning of critical mass, however, they were equally troubled by the meaning of holistic. And here, in many ways, the arguments cut more deeply. The ideal of holistic admissions has an impressive lineage. This was the approach advanced by Harvard University and other Ivy League institutions in the Bakke case. In Grutter, five Justices, led by Justice Sandra Day O’Connor, made the permissibility of holistic admissions the formal law of the land, though Justice O’Connor’s opinion ended with the suggestion that this might only be acceptable for another 25 years.
Despite the beautiful promise of these arguments, however, the skeptics clearly doubted that the universities really mean it, or really mean it the way they say they mean it. No one on the Supreme Court seemed doubtful of the potential benefits of a holistic approach to admissions that did not bringing race or ethnicity into the picture. The doubt was engendered by the suspicion that when universities include race and ethnicity, the holistic ideals become compromised and adulterated by other pressures within the rankings hierarchy of higher education, pressures that push universities toward efforts to get the right additional minority students and the right kind of those minority students. Why did Texas really augment the 10 percent system with its holistic race-conscious admissions program? Was it because it did not get enough minority students from the 10 percent regime, or was it because the students it got under the 10 percent program were not, in the eyes of Texas, good enough?
On this point, in one of the most awkward moments in the oral argument, the justices struggled with what to make of an African-American applicant who was the child of two well-educated, successful and affluent professionals. Should or should not such an applicant be the beneficiary of racial "plus points" in the admissions process? What all the justices surely knew, whatever side they might be on, was that such an applicant is typically perceived as highly desirable by universities, because the applicant helps on the numbers in two ways, improving the both the university’s diversity and academic profiles. When the advocate for Texas suggested that Texas needed such affluent minorities as a diversity counterpoint to the minorities generated by the 10 percent system, which were heavily composed of students from entirely minority-race schools from poorer, less academically elite circumstances, Justice Alito blanched, as if this were a duplicitous betrayal of the blue collar roots of affirmative action, an elitist bait-and-switch. "I thought that the whole purpose of affirmative action," he lamented, "was to help students who come from underprivileged backgrounds."
Tellingly, the issue also troubled Justice Kennedy, who emerged as the author of this week's opinion. He seemed turned off by such unabashed race-consciousness, asserting that for Texas, "what counts is race above all.” This, Kennedy, claimed, was the necessary conclusion to be drawn from Texas’ answer to Justice Alito’s questions. "You want underprivileged of a certain race and privileged of a certain race," Kennedy observed. "So that's race."
To all these Supreme Court skeptics, the term “holistic” appears to have taken more the hue of universities wanting to have their cake and eat it too. Universities want the highest possible academic credentials, which works to enhance their reputations and rankings, yet they also wanted the highest possible diversity numbers. Adding to the skeptics’ suspicion was the problem of how these holistic reviews, as a practical matter, are really undertaken. Justice Scalia thus inquired, with only thinly disguised facetiousness, how many people a ruling against affirmative action would put out of a job, since Texas must have employed a huge number of people in its admissions office to process all these highly individualized holistic reviews.
We will surely hear alternative narratives emerge on the meaning of this week's ruling. Some will say that it portends that affirmative action is hanging by a thread. Others may characterize it as affirming the framework adopted in Grutter.
One point, however, seems clear: the holistic approach to admissions that most in higher education have embraced for decades is under ever-increasing legal stress. In Grutter, Justice O’Connor’s opinion suggested that the clock may run out on race-conscious admissions after 25 years — or 2028. This week's ruling, at the very least, signals that universities should begin to seriously prepare for a much sooner date.
Contemplating that possibility, a holistic approach to admissions may be imagined that does not include any injection of consideration of race or ethnicity. A university might adopt an approach to admissions that is “holistic” in the simple sense that it is not single-mindedly driven by the academic numbers, such as test scores, grade point averages, or Advanced Placement courses. Leadership, altruism, civic engagement, public service, passion for social justice, creativity, entrepreneurial spirit, resiliency, drive, ambition, the capacity to overcome adversity, all the polymath possibilities that might comprise true grit, could be included in a student’s evaluation, factors resonant in their connection to our most romantic renditions of the American dream.
And indeed, the vast majority of American universities that employ race-conscious holistic admissions programs claim that race is simply one ingredient spicing this richer bouillabaisse. For those institutions that really believe that these character traits enhance the quality of a student body, the Constitution of the United States, as now redefined by the Supreme Court, stands as no impediment. And whatever one’s politics, one’s views of affirmative action, one’s views of the competing narratives explaining Fisher, an admissions system that includes some flexibility to reward grit will be a good thing for higher education and for society, fully resonant with the ever-evolving reinterpretation of the most enduring traditions of the American Dream.
Some time between now and the end of June, the U.S. Supreme Court will issue its ruling in a major case challenging affirmative action policies in higher education, Fisher v. University of Texas. Many legal observers believe a conservative court will significantly curtail or even eliminate the ability of universities to use race in admissions, but according to a recent Inside Higher Ed poll, college presidents are much more confident that the decision’s impact will be minor.
Which group is most likely to be correct?
In the case, Abigail Fisher, a white student, sued the University of Texas at Austin for using race in admissions decisions to boost the proportion of black and Latino students, contending it is a violation of the 14th Amendment’s Equal Protection Clause. UT argues that its use of race is permitted by the U.S. Supreme Court’s 2003 ruling supporting affirmative action at the University of Michigan Law School, Grutter v. Bollinger.
According to the Inside Higher Ed poll, by 77 percent to 23 percent, college presidents believe the U.S. Supreme Court will stop short of imposing "major limits on the consideration of race in the admissions process.” Some 51 percent of presidents suggest the court will impose only “modest limits” and 26 percent expect the justices to “uphold current policies.”
On one level, the confidence is understandable. In the earlier Supreme Court challenges – the 1978 Bakke case and the 2003 Grutter litigation – supporters of affirmative action managed to dodge the bullet. Despite dire predictions at the time, the Court ended up allowing universities to continue to employ race in admissions. Despite the unpopularity of affirmative action programs among the broader American public, the nation’s military, business and educational establishments managed to sway a narrow majority of justices in 2003, and more than three-quarters of university presidents expect the same thing to happen again in the Fisher litigation.
But this time around, the result may well be different for two reasons: the make-up of the U.S. Supreme Court has changed, and the on-the-ground experience with alternatives to affirmative action is more fully developed.
A decade ago, when the Supreme Court ruled in the Grutter case, Justice Sandra Day O’Connor cast the decisive fifth in favor of allowing universities to employ race in admissions. She has since been replaced by the much more conservative justice, Samuel Alito; Justice Anthony Kennedy, who dissented in Grutter, is the new swing justice.
One of Kennedy’s major objections to the Grutter decision involved Justice O’Connor’s handling of the rule that universities seek “race-neutral” ways of achieving racial and ethnic diversity prior to employing explicit racial preferences. This judicial requirement has long been in place under the theory that because the Constitution disfavors categorizing individuals by race, if universities can achieve racial diversity in another way (by, for example, favoring low-income students of all races), they should do so.
O’Connor’s Grutter opinion irked Kennedy because she said of the University of Michigan: “We take the Law School at its word that it would ‘like nothing better to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” In dissent, Kennedy replied: “Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith.”
Kennedy’s key concern is related to the second new development: evidence from a number of universities that race-neutral approaches can produce as much racial and ethnic diversity as using race per se. At the University of Texas, a lower court decision in 1996 banned the university from using race, so it adopted two race-neutral alternatives: a plan to admit students in the top 10 percent of their high school class (irrespective of test scores) and affirmative action for economically disadvantaged students of all races. These two plans produced a class that was 4.5 percent African American and 16.9 percent Latino in 2004, compared with a class that was 4.1 percent African American and 14.5 percent Latino in 1996, when race was last used. For Kennedy, Texas’s subsequent reintroduction of race in admissions is likely to be seen as unnecessary and therefore illegal.
More broadly, in an analysis of leading public universities where the use of race was dropped, my colleague Halley Potter and I found that in 7 of 10 cases, the use of race-neutral alternatives such as class-based affirmative action produced as much black and Latino representation as had the previous use of race.
Looking forward, the U.S. Supreme Court could take one of three paths: (1) keep Grutter in place and support the continued use of race; (2) overturn Grutter and declare the use of race illegal across the board, or (3) strictly enforce Grutter’s requirement that universities try race-neutral alternatives and only use race as a very last resort.
My expectation, based on Kennedy’s pivotal role, is that the court will go for option 3. On the surface, this might look like a “minor” limitation, applying only to universities that have Texas-type race-neutral alternatives already in place. But that is a mistaken interpretation. The principle requiring universities to vigorously pursue alternatives to racial preferences before using race would apply across the board. And in practice, such a rule would revolutionize the way universities admit students.
Several studies find that universities now employ very large racial preferences (for example, increasing a student’s chances of admissions by 28 percentage points) and provide virtually no preference to low-income students. If the Court instead requires universities to use race-neutral alternatives primarily, and only employ race as a very minor factor to the extent alternatives don’t work, the effect would be to flip the emphasis so that class counts a great deal and race counts very little, if at all.
Risk-averse lawyers advising admissions offices may in fact suggest that universities only employ race-neutral alternatives. That is what has happened for the most part in K-12 education, where a 2007 decision limiting the ability of school districts to use race in student assignment has seen some 80 districts shift the focus of integration programs from race to class.
In the event that the court severely restricts the ability of colleges to employ race, the Inside Higher Ed presidents’ poll suggest class-based alternatives are about three times as popular as Texas-style percentage plans (which are hard to apply to universities with national applicant pools.) If the right of colleges to employ race and ethnicity in admissions is scaled back, 11 percent of presidents agreed or strongly agreed they would drop standardized tests and 14 percent said they would adopt a policy to admit a top percentage of students from every high school in their state.
By contrast, enthusiasm for class-based affirmative action was stronger: 39 percent said they agreed or strongly agreed that they would place more consideration on applicants’ socioeconomic status; 42 percent would place more consideration on first generation status, and 43% would spend more on financial aid. Evidence from states where affirmative action has already been banned suggests the percentages of universities that switch to class will be even higher.
Interestingly, then, a conservative Supreme Court decision requiring universities to pull back on racial preferences could pave the way for a more liberal set of policies: greater consideration of class in admissions, and the financial aid to back it up.
This month, when the Supreme Court heard oral arguments in this term’s big higher education affirmative action case, Fisher v. University of Texas,The Wall Street Journal ran an op-ed I wrote entitled "A Liberal Critique of Racial Preferences" alongside an article by the president of the University of Texas at Austin, Bill Powers, entitled "An Admissions Policy that Prizes Diversity." Powers painted Austin as a champion of racial justice, noting "My university once kept blacks out. Now at Texas we ensure that their grandchildren can enter."
In the affirmative action wars, leading institutions of higher education have positioned themselves as high-minded proponents of racial inclusion. On the surface, that appears to be true, as universities and colleges have deluged the Supreme Court with amicus briefs filed in support of the ability of institutions to employ racial preferences in admissions. And, to be sure, many leaders are genuinely committed to the important ideas that racial diversity strengthens education and that racial integration of selective colleges is a moral imperative.
But at I outline in a new report for the Century Foundation, there are many ways to produce racial diversity without using race – such as giving a leg up to economically disadvantaged students, or providing automatic admission to students at the top of their high school class. Indeed, when one looks more closely at the facts in the Texas case, university leaders have actively sought to curtail a highly effective automatic admissions program that produces a great deal of racial, ethnic and socioeconomic diversity. In fact, the evidence suggests that UT leaders appear to prize something even more than racial inclusion: the discretion to admit whomever they want, including disproportionate numbers of wealthy and white students.
While President Powers like to wax eloquent about the importance of diversity – writing, “In my 38 years in the classroom, I often have seen how a diverse classroom enriches discussion, provides valuable insights and offers a deeper learning experience” – in fact Texas has fought for years to limit the state’s most powerful engine for racial, ethnic, and economic diversity.
When Texas was banned from using racial preferences by a lower court in the mid-1990s, the legislature passed a top 10 percent plan, by which students who rank at the top of their high schools are automatically eligible to be admitted to UT Austin. UT continued to admit some students by a more traditional holistic review, which included a number of factors, such as test scores, grades and socioeconomic status. When the U.S. Supreme Court endorsed the ability of universities to consider race in the 2003 Grutter v. Bollinger decision, Texas began using race as part of its discretionary (non-top 10 percent) admissions process. This use of racial preferences gave rise to litigation by a white student, Abigail Fisher, whose case is now being considered by the U.S. Supreme Court.
Texas argues that it needs to use race in admissions to ensure racial diversity, but as David Savage has reported in The Los Angeles Times, 9 of 10 Latino and black student admitted to UT in the last two years came from automatic admissions, not through affirmative action. Even though the top 10 percent plan (which in 2011 was limited to the top 8 percent), produces substantial socioeconomic and racial diversity, UT Austin has continually fought in the Legislature to curtail the program's reach, thereby reducing rather than enhancing racial, ethnic, and socioeconomic diversity on campus.
In 2007, Powers and UT Austin sought legislation to cap the proportion of students admitted through the 10 percent plan, which then stood at 71 percent of students, at 40 or 50 percent of the
freshman class. According to The Austin American-Statesman, Powers argued that the cap would make it easier to produce racial diversity because the university would have greater discretion to provide racial preferences. But minority legislators saw that the 10 percent plan was producing significant diversity on its own and did not buy UT’s argument. A fascinating coalition of white rural legislators and urban minority lawmakers – whose constituents were entering UT Austin as never before under the 10 percent plan – successfully beat UT’s proposed cap. Luis Figueroa of the Mexican American Legal Defense and Education Fund opposed the limit, saying, "There’s no better merit system than the top 10 percent plan."
In 2009, as automatic admissions continued to grow, UT Austin was successful in imposing a higher automatic admission cap – at 75 percent – and this had the effect of limiting enrollment to the
top 8 percent in every high school class. The legislation also required UT Austin to provide a demographic breakdown by race, ethnicity, and socioeconomic status of top 8 percent vs. discretionary admits.
The report submitted by Powers on December 31, 2011 suggests that legislators representing minority and low-income constituencies were right to worry about how a cap on automatic admissions at 40 percent or 50 percent would have affected minority enrollment. In 2011, black, Latino and Asian students did better under the top 8 percent plan, while whites did substantially better under the discretionary plan, even though the latter includes the university’s affirmative action program. Twenty-nine percent of those admitted under the top 8 percent plan were Hispanic, compared with just 14 percent under the discretionary plan. Blacks represented 6 percent of those in the 8 percent plan, but 5 percent under the discretionary plan. Asian Americans also did better under the 8 percent plan. The big beneficiaries of discretionary admissions? White students, who accounted for 58 percent of admits compared with 41 percent under the top 8 percent plan.
The automatic admissions program, which UT Austin has continually sought to limit, also benefits low-income students, while Austin's discretionary admissions program benefits rich kids. In 2011, 9 percent of top 8 percent admits were from families with annual household incomes below $20,000 compared with just 3 percent of the discretionary admits. Among those making between $20,000 and just under $40,000, representation among top 8 percent admits was twice as high (14 percent) as in the discretionary pool (7 percent). Meanwhile, at the other end of the scale, students from wealthy families (making more than $200,000 per year) were far more likely to be represented among discretionary admits (29 percent) than among top 8 percent admits (13 percent).
There are parallel data involving parental levels of education. In 2011, automatic admits were three times as likely to have a most educated parent lacking a four-year degree (33 percent) compared
with discretionary admits (11 percent). On the flip side, 34 percent of automatic admits had a parent with a graduate degree compared with 54 percent of discretionary admits.
While some might worry that the low-income and working-class students admitted under the automatic admissions plan would struggle at UT Austin, research by Sunny Niu and Marta Tienda of Princeton University concluded, "Compared with white students ranked at or below the third decile, top 10 percent black and Hispanic enrollees arrive with lower average test scores yet consistently perform as well or better in grades, first-year persistence, and four-year graduation likelihood."
How would a percentage plan work elsewhere? In an amicus brief in support of racial preferences, the University of North Carolina at Chapel Hill said it had modeled the effects of a top 10 percent plan in North Carolina. The brief conceded that racial and ethnic diversity would actually increase modestly – from 15 percent to 16 percent "non-white and underrepresented students" – but claimed the plan would have a devastating effect on the academic readiness of students. The average SAT score, UNC fretted, would decline from 1317 to 1262. But is this really such a terrible result? According to data from the College Board, this very modest drop would take the average SAT at Chapel Hill from the 91st percentile to the 86th.
Of course, percentage plans won’t work at private institutions drawing upon a national pool and will not produce as much college diversity in states with more integrated high schools. And there are important reasons that university administrators should have discretion in admissions to build a class that includes violinists and chemists and the like. But socioeconomic affirmative action plans can work at private institutions and unfortunately, our nation’s high schools are becoming more economically and racially segregated, not less.
Moreover, the Supreme Court has long held that discretion to build a class is not unlimited. It does not include the right to discriminate against students of color, and in the Fisher case, the Supreme Court is likely to further reduce the discretion of university officials to provide racial preferences in favor of underrepresented minority students. This would force universities to find other ways to promote diversity. As Texas demonstrated, some of those alternatives can produce even higher levels or racial, ethnic and economic diversity than holistic review, opening the doors to low-income, working-class and minority students in a way that discretionary affirmative action programs never have.
This fall, the United States Supreme Court will consider the case of Fisher v. University of Texas, which asks whether that university’s use of affirmative action in admissions passes constitutional muster. I served on the legal team that defended the University of Michigan Law School admissions policy in Grutter v. Bollinger, where the Supreme Court held that fostering a racially diverse student body is a compelling state interest that colleges and universities can pursue in a narrowly tailored way. I believed that the Court correctly decided Grutter when I was helping to litigate the case, but I believe it even more firmly in my newer role as a law school faculty member.
For a number of technical reasons, it seems unlikely that the Supreme Court will treat Fisher as an occasion to revisit Grutter. If the Court does do so, however, then it should let Grutter stand. The reason is simple: The primary reason to leave Grutter alone is that the Court there got it exactly right.
Grutter recognized that having a diverse student body serves a variety of important educational objectives. One of those objectives can be described syllogistically: personal characteristics help determine our experiences; our experiences inform our thoughts and perspectives; therefore, having students with a wide array of personal qualities helps enrich the educational environment by infusing it with a rich variety of ideas and points of view. Of course, a diverse student body serves other educational goals as well, for example, by challenging stereotypes and building cross-cultural understanding. But the heart of the Grutter decision rests on an understanding of the unique value of learning in an environment where we encounter people whose characteristics, experiences, and perspectives differ from our own.
For many years, I have seen the benefits of having a diverse student body in one of the courses I teach — Legal Ethics. This seems unremarkable in light of the fact that the discussion of ethical matters tends to draw out the philosophical, religious, cultural, and experiential differences among the participants. It is therefore unsurprising that I have witnessed many lively exchanges in that class between students who brought dramatically contrasting orientations to the questions at hand.
Perhaps more surprising are the benefits of having a diverse student body in another course I teach — Evidence. In this class, students learn the principles that determine whether a document, object, or witness’s testimony will be admitted at trial for consideration by the jury. Evidence is what law students sometimes call a "rulesy" course and it does not put variations in individual identity, experience, perspective, or conscience on display in the same obvious way as a course on ethics. And, yet, in my evidence class those variations push their way to the surface repeatedly and unexpectedly.
Sometimes this results from an aspect of a student’s background that does not seem particularly significant or self-defining. Consider, for example, an incident that occurred when my evidence class was studying a doctrine that allows non-expert layperson witnesses to testify to their opinions on certain matters. The rules limit such testimony to the sorts of educated guesses we make in everyday life: How far is it from here to there? How fast was the car going? Is that person drunk?
To explore with my students our capacity to make such inferences based on our experiences, I conduct a simple experiment. I produce two unlabeled cups containing soft drinks and ask for a volunteer to take a sip from each and tell us which contains Coke and which Pepsi. Every year, almost all of the students in the class says they can do this; every year, the student who volunteers to try succeeds.
One year, however, my student volunteer did something unexpected. She came to the front of the class, glanced at the cups, and said confidently: "I can tell by the smell." She picked up one cup; sniffed it; and correctly declared that it contained the Pepsi. Her fellow students burst into applause. She explained that she had worked in a restaurant that served both products and that she had acquired this skill so she could help out on those occasions where the waitperson who had poured the beverages lost track of which was which.
This immediately led to an interesting debate: Was this student a layperson offering an educated guess based on her personal experience or an expert offering an informed opinion based on her specialized knowledge? For a variety of reasons, this distinction matters under the rules of evidence. This student had shown — much more clearly and memorably than I could have done by lecturing about it — that under some circumstances the distinction is very fine indeed, and perhaps even vanishes.
In many other instances, a more self-definitive characteristic that a student possesses has ended up shaping their contribution to the classroom discussion in a poignant and powerful way. I recall, for instance, one day when we were working through a problem that involves the hearsay doctrine. In very general terms, that doctrine prohibits witnesses from repeating things in court that were said outside of court. Students often find the doctrine maddeningly complicated.
Part of the doctrine’s complexity arises from the fact that it is subject to dozens of exceptions. This includes exceptions for statements that were made under stress or excitement and for statements that describe an event and were made while or right after the event was occurring. These exceptions rest in part on the assumption that statements made under these circumstances are typically less calculated and therefore more reliable.
We were discussing a scenario — based on an actual case — that presented the question of whether the tape of a phone call to a 911 operator should be admissible. In the tape, a woman who lived in an apartment building reported that several large dogs, owned by one of her neighbors, were attacking another neighbor in the hallway. The caller described the dogs, the people who owned them and were trying unsuccessfully to restrain them, and the location and severity of the attack. During the entire call, the woman remained in her apartment with the door closed.
I had taught this scenario for many years and the discussion consistently played out along the same lines. The students would recognize that the tape presented a hearsay problem. They would identify the exceptions discussed above as potentially applicable. And then they would spot a difficulty in applying those exceptions: because the woman listened to the commotion through her door and never left her apartment, she arguably did not have personal knowledge about the matters she was describing. This is how the discussion always had gone; this is how it always had ended.
On this occasion, however, a student raised his hand just as we were about to move on. “I’m sorry,” he said, “but I disagree with the conclusion. You’ve all wrongly assumed that you need to see something to have personal knowledge about it. This woman knew what her neighbor’s dogs sounded like. She could hear that they were attacking someone. She could recognize her neighbors’ voices. She could tell where the sounds were coming from. Granted, she didn’t see anything. But she certainly had personal knowledge of what was happening.”
The class sat in stunned silence. Of course, this student was right. He also happened — not incidentally — to be blind.
When the Supreme Court decided Grutter in 2003, race mattered. It shaped experience in myriad and unique ways. It informed perspectives, ideas, and opinions. It still does.
As a practicing lawyer, I have argued that institutions of higher education have a compelling interest to admit a diverse student body based upon legal principles and social science. As a faculty member, I now make the same argument based upon my experience. Indeed, I have come to believe that Grutter is wise and right in ways that I did not even understand when I was busy working on it.
I have seen the evidence.
Len Niehoff is professor from practice at the University of Michigan Law School and is chair of the higher education practice at Honigman, Miller, Schwartz & Cohn. The ideas expressed here are his own.