Not Quite an End to Affirmative Action

Michael A. Olivas analyzes a ruling in a case he says had no business being before the Supreme Court.

June 25, 2013

When admissions committees at selective colleges choose from among thousands of applicants, nearly all of whom have the credentials to do the work, they are doing exactly what they are charged to do: assembling a qualified, diverse student body. The Bakke and Grutter Supreme Court rulings sanctioned this approach; common sense dictates it; and no anecdotal horror stories or isolated allegations can change this central fact.

There is no evidence that whites are displaced in the process, and those few who are affected likely have many alternatives, as Abigail Fisher did when she was admitted into Louisiana State University after she failed to get into the University of Texas at Austin. Her grades and class standing did not get her admitted even with two bites at the apple -- she did not qualify for the percent plan (under which top students from Texas high schools are admitted), and she was not admitted under the UT holistic review process. Using Bakke and Grutter reasonably, the surprise is not that the system works fitfully, but that it works so well in light of the current crush of applicants and costs of applying. Bakke's carefully nuanced opinion by Justice Powell has proven surprisingly resilient and supple over the intervening decades, even with the attempts at revisionism by Fifth Circuit judges and unyielding conservative organizations that characterize whites as hapless victims.

Grutter's rule of law ensured that affirmative action remains a vital tool in admissions. As demographic changes occur and historical discriminatory practices are changed, the argument that race preferences in admissions are necessary to combat the vestiges of racial discrimination will likely lose its force. Few legislatures are likely to confess racial prejudice or to acknowledge it in their state agencies.

However, aggrieved Anglo plaintiffs and their organizations will not be appeased and will continue to make the unsuccessful argument that even the slight use of race is unconstitutional.

As one of the responses to Hopwood, in which an appeals court ruled that public universities in Texas could not consider race in admissions, and in light of the enrollment damage evident to its undergraduate programs and professional schools, the Texas Legislature enacted a race-neutral program, the Texas Top Ten Percent Plan, in 1997. This plan allowed all graduates of the state's high schools to attend any public college, provided that the applicant had graduated in the top 10 percent of his or her class. This provision broadened the number of schools that sent students to the state's public colleges, particularly to the University of Texas at Austin, and all internal UT studies and other scholarship have revealed that full-time, first-time freshmen admitted under the Top Ten Percent Plan remained enrolled longer, performed better, and graduated in greater numbers than did their non-plan counterparts.

Indeed, the plan became so successful that it threatened to swamp the Austin campus. As a result, the legislature reluctantly granted an escape valve at UT-Austin to trim back admissions under the percentage plan to the top 7 percent of high school graduates in the state. Since its inception, this plan had no racial component; while it mitigated some of the earlier Hopwood losses, its participants were of all races, predominantly whites, who recently constituted more than half the percent plan admittees, even though whites are less than a third of Texas K-12 enrollments. Even so, in Fisher v. University of Texas, another generation of white applicants sued the university, arguing in a 2008 federal district court case and a 2011 circuit appeal that, with the percentage plan in use, the university should not be permitted to use the tools that Grutter had constitutionalized.

In effect, the suit – the basis for Monday’s Supreme Court ruling – argued that if colleges can find some way to get a little diversity, they need to settle for that, and not attempt to bring greater diversity to campus. Never mind that over half the percent pan admits have been white, in a state where half the schoolchildren are not white. "Critical mass" has to mean something different in New Hampshire than it does in Texas.

Not only were some members of the appeals court distressed that the percent plan had been implemented, but in a special concurrence with the decision rejecting Fisher's suit, Circuit Judge Emilio M. Garza wrote to show his special disdain even for Grutter: "Today, we follow Grutter's lead in finding that the University of Texas's race-conscious admissions program satisfies the court's unique application of strict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles."

In this round of deciding the constitutionality of Texas public college admissions standards, the circuit was once again calling into question the legitimacy of the Supreme Court's decision-making, as it had done in Hopwood, even as it followed its requirements in this instance. What is extraordinary is that no legal challenge to the percent plan or even to Grutter was on the table. On their own gag reflexes, they choked.

Minorities with real grievances, such as racially profiled Mexican-origin citizens in Arizona, gerrymandered black and Latino voters in Southern states, and even majority educators in Louisville and Seattle who tried to desegregate schools -- these claims are stonewalled and denied by this conservative Supreme Court, but the inadmissible applicant Fisher is encouraged that she was somehow deserving of yet another bite at the apple, even as she was not admitted under her own power and merits. She, like so many before her, is convinced that her inability to be admitted was surely due to a lesser-deserving minority having taken HER place.

Now that whites are a shrinking number and  percentage of the school population and polity, this racial calculus is sure to soar, and whites will aggressively and purposively seek "minority legal protection."

Should Fisher win her case down the road, they will find no safe harbor, and will feel the stinging accusations, that they made it due to special pleading and do not deserve the leg up. For now, with Fisher, the Supreme Court has vacated and remanded the appeals court ruling: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." The Supreme Court ordered the appeals court to reconsider the key holding of Grutter -- that any plan be narrowly tailored. As I had feared, they appear to have misapprehended the percent plan, which is race-neutral and resulted in over half its admits being Anglos, else the case would not still be in play, as UT’s plan is operationally like the Michigan Law School plan, which the Supreme Court backed 10 year ago.

I assisted the late Texas State Rep. Irma Rangel in the drafting of the percent plan, a tremendous success, and it was race-neutral. It is sad that such a plan as operationalized  has occasioned such misunderstanding, even by Justice Ginsburg in her dissent, and given aggrieved Anglo plaintiffs more occasions to assume that if they are not admitted, it must have been due to a lesser-deserving minority taking their place. This did not happen here, and the Circuit should uphold its earlier ruling.

To the extent that race is accounted for in the process, it should be one of many considerations: I have argued that Justice Powell's opinion was the correct route for the Supreme Court to follow when it took up Bakke's progeny, and Grutter had settled that issue for the foreseeable future.

The use of affirmative action in college admissions has been the constitutional law of the land as determined by the U.S. Supreme Court at least since 1978. But having conservatives, and especially federal judges, cursing the darkness does not help matters; one can only ask why conservative organizations continue to litigate settled matters and to protest, methinks, too much. Under traditional rules of civil procedure, before one can go to court, there must be a demonstrable harm to be remedied, and the admissions evidence clearly shows that whites are not harmed by affirmative action in the aggregate.

There are substantial civil penalties for litigants frivolously employing federal courts to bring unwarranted or inappropriate actions, and the jurisprudence of admissions challenges on race -- Bakke in 1978, affirmed by Grutter in 2003, and now Fisher in 2013, should the narrow-tailoring be upheld -- will have been resolved to the point where these sanctions should be leveled at such future claims.


Michael A. Olivas is a professor of law at the University of Houston. This essay is adapted from his new book, Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press).


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