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The Texas Diversity Wars

Will the Supreme Court step in?

Oct 31, 2011, Vol. 17, No. 07 • By TERRY EASTLAND
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Among the cases the Supreme Court is being asked to take in its new term is one from Texas challenging racial preferences in college admissions. Alice Fisher was finishing her senior year at Stephen F. Austin High School in 2008 when she applied, unsuccessfully, for admission to the University of Texas at Austin. Having good academic credentials, she sued in federal district court, alleging discrimination on account of an admissions policy that favors black and Hispanic applicants. Fisher lost in the lower courts, but her case, if granted by the Court, could be one of the term’s most important. The Obama administration already is on record in Fisher v. Texas, having supported the university in an amicus brief in the court of appeals for the Fifth Circuit.

Photo of Supreme Court building

Fisher argues her case in terms of the Fourteenth Amendment, under which no state, nor the federal government for that matter, may deny to any person within its jurisdiction “the equal protection of the laws.” Over the years the Court has made clear that the clause casts deep suspicion on the use of race by government. It doesn’t matter, the Court has explained, whether the complaining individual is white or black, a minority or a nonminority; or whether the use of race is “invidious” or ostensibly “benign.” “To the person denied an opportunity or right based on race,” the Court has said, “the classification is hardly benign.” Accordingly, any consideration of race must be subjected to “strict scrutiny.” The doctrine calls for an exacting evaluation of the purposes for which race is being used and the means employed to achieve them.

The Court addressed the particular issue of racial preferences in admissions in 1978, in the landmark Bakke case, and then again in 2003, in two companion cases from Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Applying strict scrutiny, the Court in Gratz struck down the “mechanistic” system by which the University of Michigan automatically gave minority applicants a certain number of points that increased their chances of admission. And in Grutter the Court upheld the Michigan Law School’s more subtle use of race in its admissions procedures. Grutter and Gratz immediately became and remain today the Court’s leading cases in this area of law, a guide as to how public universities may design their admissions procedures in order to enroll more minority applicants. 

Writing for the majority in Grutter, Justice Sandra Day O’Connor said that the “educational benefits” that flow from diversity constitute a “compelling interest” that may be achieved by obtaining a “critical mass” of “underrepresented” minorities through the “narrowly tailored” use of race in selecting a class. A university thus may regard race as a “plus” factor in the “individualized consideration” of each applicant. But it can’t use racial quotas. It can’t award points on the basis of race. It can’t engage in “racial balancing,” either. And the use of race in admissions should end. “Race-conscious admissions policies must be limited in time,” she wrote, adding: They “must have a logical end point,” they must have “a termination point.” They must be (quoting a prior case) “temporary.”

The composition of the Court has changed since O’Connor wrote in Grutter. Most important, in 2006, O’Connor herself retired and Justice Samuel Alito took her place. The Court is now more conservative in its jurisprudence, and if it takes the case, it could vindicate Fisher while also clarifying or reconsidering key parts of Grutter.

The policy Fisher is challenging is one of several admissions policies at the University of Texas (the -others are at professional and graduate schools) that were revised in 2004 to include consideration of race in selecting applicants. Before then, UT as well as public colleges and universities throughout the state were unable to distinguish and prefer applicants on grounds of race thanks to Hopwood v. Texas, the 1996 case in which the Fifth Circuit held unconstitutional the Texas law school’s race-preferential admissions process. Grutter made possible the return in 2004 to preferences in admissions since it effectively overruled Hopwood, thus enabling Texas to craft new policies. And Texas did so in light of, indeed inspired by, Grutter’s teachings.

The policy for the undergraduate school is different from the others in a key respect, for it governs only a small portion of seats in a class. In 1997, concerned that Hopwood might result in fewer black and Hispanic students enrolling at Texas colleges and universities, the legislature enacted the Top Ten Percent Law, under which in-state high school students graduating in the top decile of their class are automatically admitted to the state college or university of their choice. The law has affected admissions since 1998. Over the years Top Ten students have taken more and more seats in the freshman classes at UT-Austin—81 percent of the seats, in fact, in the class of 2008 to which Fisher applied. The remaining seats are governed by the race-conscious admissions policy.

Fisher, not incidentally, finished just outside the top decile of her high school class. So when she applied for admission to the university in 2008, she was competing with 16,000 non-Top Ten students for 19 percent (1,216) of the seats in the class. Fisher also was applying to a class more than 20 percent of whose members were black and Hispanic, thanks in large part to the Top Ten Percent Law. The year before the law took effect, roughly 1,000 Texas high schools failed to send even one student to UT-Austin—the law is race-neutral but, sweeping through every high school as it does, it disproportionately benefits black and Hispanic students.

The Top Ten Percent Law and its impact upon undergraduate admissions could be a key issue in Fisher. In Grutter, O’Connor wrote that “narrow tailoring [requires] serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” She asked whether “percentage plans” such as those in Texas, Florida, and California would qualify as just such an alternative, a position the Bush administration advocated. Considering that argument in the context of an undergraduate school, O’Connor wrote that percentage plans “may preclude the university from conducting the individualized assessments necessary to assemble” a diverse student body.

If the Grutter Court was right about this—if the Top Ten Percent Law isn’t a “workable race-neutral alternative”—then Texas’s percentage plan is irrelevant to deciding whether the challenged policy is unconstitutional. But Fisher differs in a critical respect from Grutter: It is not a case about a university that is considering whether to adopt a percentage plan but a case about a university with a plan already in place. Granted, the Top Ten Percent Law authorizes not an ideal admissions policy. It takes into account only class rank and thus forecloses consideration of everything else, including SAT scores and school quality and curriculum. But the plan has contributed significantly to the growing numbers of black and Hispanic students that the university has enrolled since 1998. And the plan is race-neutral by its terms, something that cannot be said about the race-conscious policy under which non-Top Ten students apply.

Under that policy, the number of black and Hispanic students who are enrolled thanks to consideration of race is small, roughly 55, in the persuasive estimate of Fifth Circuit judge Emilio Garza, who concurred in the opinion by the three-judge panel upholding the policy, having concluded that the decision was “a faithful, if unfortunate, application” of Grutter. Dissenting from her court’s denial of Fisher’s request for rehearing the case, Fifth Circuit chief judge Edith Jones, joined by four of her colleagues, wrote that the “additional diversity contribution of the university’s race-conscious admissions program is tiny and far from ‘indispensable.’ ” The use of race, said Jones, is not “narrowly tailored” and for that reason the admissions policy is unconstitutional.

Another issue in the case is novel: whether “classroom diversity” is a compelling interest. The university says it is, citing surveys of undergraduate classes of “participatory size,” meaning those with 5 to 24 students, which found that very few contained a black or Hispanic student. Grutter did not go so far as to endorse classroom diversity as a compelling interest. But Texas has read Grutter as if it did. And so the university has pointed to classroom and campus-wide diversity in justifying the use of preferences in admissions in order to obtain a “critical mass” of black and Hispanic students.

But if Texas is right about classroom diversity, there is no reason why the university may not also “consider race” in assigning students to schools and colleges—thus enabling them to be in more classes of “participatory size,” where the educational benefits of diversity are supposed to best accrue. As Judge Garza wrote, “A university’s asserted interest in racial diversity could justify race-conscious policies .  .  . not merely in the student body generally, but major by major and classroom by classroom.” An obvious question here is how such employment of race in sorting students might ever end. Garza was skeptical that there was any basis on which it could end, writing that his court’s decision would “in practice, allow for race-based preferences in seeming perpetuity.”

Of course, it is by no means certain that the Supreme Court will take Fisher. The case isn’t about a split in the federal circuit courts. Nor is it about a conflict among state supreme courts over the meaning of a federal law. Nor is it about a federal law that was struck down by the lower courts.

On the other hand, there is reason to think that the Court might decide to review the case. Consider that at the end of her opinion in Grutter Justice O’Connor stated the majority’s expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” More than a third of that time has passed, surely enough for racial preferences to begin their demise. Why wouldn’t the Court want to take a case now to see whether this is happening?

And if the justices do decide to review Fisher? Given how the composition of the Court has changed since Grutter, a more judicially conservative majority may see Fisher as a constitutionally worrisome case about expanding racial preferences. It may have doubts about whether federal courts should be as deferential to institutions of higher education as Grutter allows them to be in their race-plussing admissions procedures. It may show less patience with the elusive meanings of such terms as “critical mass” and “underrepresentation,” not to mention “diversity” itself.

As for a statement of first principles, a majority will do no better than repair to what Justice Scalia wrote in concluding his partial dissent in Grutter: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

Terry Eastland is publisher of The Weekly Standard.

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