The Texas Diversity Wars
Will the Supreme Court step in?
Oct 31, 2011, Vol. 17, No. 07 • By TERRY EASTLAND
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.
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.