Fisher v. University of Texas at Austin is the affirmative action case that won’t go away. It’s been to the Supreme Court once and may return. It is a case that could well turn on a failure to define terms—“critical mass” being the critical term.
The path to Fisher, and thus to “critical mass,” starts with the Fourteenth Amendment, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The amendment thus forbids state action that treats people differently on account of their race. To guard against that, the Supreme Court has held that racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny”—the highest level there is—and pass constitutional muster only if they are necessary and “narrowly tailored to further a compelling government interest.”
The Court’s equal protection jurisprudence applies to the use of race in any public context. And its principles long ago were extended, in effect, to private institutions, including those of higher education, thus covering almost the entirety of that sector.
It was in that largely liberal world that educators, starting in the 1970s, crafted a “compelling interest” for competitive institutions seeking to justify using race to admit students who would not be accepted solely on the basis of their academic qualifications. Obtaining the educational benefits of a diverse student body is, they argued and the Supreme Court eventually agreed, a compelling interest that can support the use of race in admissions. Significantly, it is only in higher education that diversity can serve as a compelling interest.
Advocates of the diversity rationale have emphasized—and here I quote Justice Lewis Powell, from his influential opinion in the 1978 case of Regents of the University of California v. Bakke—that the student body diversity to be sought, and which is to produce those educational benefits, is not “simple ethnic diversity,” but one encompassing “a far broader array of qualifications and characteristics.” But despite that larger (and more diverse) understanding, racial and ethnic diversity remains a, perhaps even the, goal of most competitive schools, public and private alike. Writing for the Court in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor recognized as much: “As part of its goal of ‘assembling a class that is both exceptionally academically qualified and broadly diverse,’ the [University of Michigan] law school seeks to ‘enroll a critical mass of minority students.’ ”
That raises an obvious question: how to define this “part” of the diversity goal, this “critical mass of minority students.” It is the question at the heart of Fisher v. Texas.
The university’s flagship undergraduate school in Austin admits the majority of each freshman class through a race-neutral process and the balance through a separate process indistinguishable from that upheld in the Grutter case—a holistic, individualized review that considers race (African-American) and ethnicity (Hispanic). From the two sources—the one race-neutral, the other race-conscious—the school seeks to assemble a diverse student body that includes a critical mass of minority students.
In 2009 Abigail Fisher, a white applicant who was not admitted under the race-conscious admissions policy, sued the university, claiming she was discriminated against because of her race, in violation of the Fourteenth Amendment’s equal protection clause. Fisher lost in the district court and then in the U.S. Court of Appeals for the Fifth Circuit.
Fisher appealed her case to the Supreme Court, and in June of last year Justice Anthony Kennedy, writing for a seven-to-one majority, ruled that the Fifth Circuit had failed to apply the correct standard of strict scrutiny. In sum, the circuit hadn’t been strict enough in reviewing the university’s position; it was too deferential. The Supreme Court vacated the decision and sent the case back to the Fifth Circuit. Last month a three-judge panel issued a new decision in the case—one that again sided with the university against Fisher.