The Legal Future of Affirmative Action

Rod Smolla sees signs of new limits ahead -- both in this week's decision and in the justices' statements during oral arguments.

June 27, 2013

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.


Rod Smolla, a constitutional law scholar, is president of Furman University. He is the author of The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (NYU Press).


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