Fisher v. University of Texas is again before the Supreme Court, having just endured oral arguments on this challenge to the university’s race-preferential admissions policy. Such policies are commonly known as “affirmative action”.
The Court reviewed this challenge in 2012, and kicked the case back to the Fifth Circuit because the majority on the Court found that the Fifth Circuit did not apply strict scrutiny in arriving at its decision to uphold the policy. The Fifth Circuit then reconsidered the challenge under the strict scrutiny standard of review--which requires that the racial classification achieves a compelling governmental interest, and that the law or policy is narrowly tailored--and held again that the policy is constitutional, does not violate the Equal Protection Clause of the Fourteenth Amendment. So the Supreme Court granted certiorari on Fisher’s appeal of that decision.
Beginning with Regents of U. Cal. v. Bakke (1978), the Court has upheld “affirmative action” admission policies, so that universities may offer and students may partake of “the educational benefits that flow from a diverse student body,” as long as race is but one consideration and the policy does not impose a system of specific quotas or “racial balancing” (where the racial make-up of the student body is made to coincide with the racial percentages of the population or of applicants). The UT Law School had a race-preferential admissions policy that was struck down by the Fifth Circuit in 1996. The next year, the state legislature enacted its race-neutral Top 10% Plan, wherein all Texas high school students graduating with a GPA in the top 10% of their class were guaranteed admission to a public state college or university (but not necessarily to the program of their choice).
Admissions of African American and Hispanic students rapidly and significantly increased under the Top 10% Plan. But with the Court’s upholding of the race-preferential policy at University of Michigan Law School in 2003 (Grutter v. Bollinger), UT implemented its own race-preferential admission policy to work in conjunction with the Top 10% Plan. In Fisher I, Justice Kennedy informs us that UT developed:
. . . a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index [AI]. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.
[. . .]
. . . the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college -- such as Liberal Arts or Engineering -- admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major. http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf
Several universities have implemented admission policies that use such proxy measures for race.
By a large margin, most African American and Hispanic students are admitted through the race-neutral Top 10% law, and the largest gains in admissions for African American and Hispanic applicants occurred through the race-neutral law, not through the affirmative action program. From the Brief for Fisher in Fisher I:
During the ten years from 1998 to 2008, the percentage of African American and Hispanic students who enrolled in the incoming freshman class at UT increased from 16.2% to 25.5%, with most of the increase attributable to the Top 10% Law. SJA 156a. Indeed, over the same ten-year period, the percentage of African American and Hispanic students enrolling through the Top 10% Law increased from about 44% to almost 86%. SJA 156a-157a. The trend has continued. [. . .] UT’s President recently announced that “[f]ifty-two percent of our [2010] freshman are minority students, including 23 percent who are Hispanic, reflecting the changing demographics of the state.” http://www.americanbar.org/content/...rt_preview/briefs/11-345_pet.authcheckdam.pdf
But a large portion of the African American and Hispanic students admitted under the Top 10% Plan are from schools in which the majority of students are African American and/or Hispanic. UT argues that the university needs the race-preferential policy, described above, in order to bring in those exception Black and Hispanic students from more integrated high schools who did not graduate in the top 10% of their classes. Fisher notes that the Black and Hispanic students admitted under the race-preferential policy are more affluent and less likely to be the first in their families to attend college. It should also be noted that the race-preferential policy only applies to “underrepresented” minorities, not to Asians. Apparently some Asian applicants are denied admission to UT in favor of African American or Hispanic students who have a lower GPA.
So should the Court uphold this admission policy?
(For those who seek more information on this case, you will enjoy the briefs: http://www.americanbar.org/publications/preview_home/2015_2016_briefs/14-981.html)
One final issue: In Grutter, Justice O’Connor’s majority opinion spends several paragraphs on the fact that government-approved racial discrimination is contrary to the “core purpose “ of the Equal Protection Clause, and therefore such schemes for remedial purposes “must have a logical end point.” The nature of the principle that temporarily upholds an offense against the Constitution has always been problematic and difficult for the Court to articulate, as the principles that make a law or government policy constitutional should be the same today as tomorrow. This axiom of continuity underpins the doctrine of stare decisis. So, at what point should affirmative action admission policies be held “no longer constitutional”? How should that “logical end point” be determined?
The Court reviewed this challenge in 2012, and kicked the case back to the Fifth Circuit because the majority on the Court found that the Fifth Circuit did not apply strict scrutiny in arriving at its decision to uphold the policy. The Fifth Circuit then reconsidered the challenge under the strict scrutiny standard of review--which requires that the racial classification achieves a compelling governmental interest, and that the law or policy is narrowly tailored--and held again that the policy is constitutional, does not violate the Equal Protection Clause of the Fourteenth Amendment. So the Supreme Court granted certiorari on Fisher’s appeal of that decision.
Beginning with Regents of U. Cal. v. Bakke (1978), the Court has upheld “affirmative action” admission policies, so that universities may offer and students may partake of “the educational benefits that flow from a diverse student body,” as long as race is but one consideration and the policy does not impose a system of specific quotas or “racial balancing” (where the racial make-up of the student body is made to coincide with the racial percentages of the population or of applicants). The UT Law School had a race-preferential admissions policy that was struck down by the Fifth Circuit in 1996. The next year, the state legislature enacted its race-neutral Top 10% Plan, wherein all Texas high school students graduating with a GPA in the top 10% of their class were guaranteed admission to a public state college or university (but not necessarily to the program of their choice).
Admissions of African American and Hispanic students rapidly and significantly increased under the Top 10% Plan. But with the Court’s upholding of the race-preferential policy at University of Michigan Law School in 2003 (Grutter v. Bollinger), UT implemented its own race-preferential admission policy to work in conjunction with the Top 10% Plan. In Fisher I, Justice Kennedy informs us that UT developed:
. . . a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index [AI]. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.
[. . .]
. . . the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college -- such as Liberal Arts or Engineering -- admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major. http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf
Several universities have implemented admission policies that use such proxy measures for race.
By a large margin, most African American and Hispanic students are admitted through the race-neutral Top 10% law, and the largest gains in admissions for African American and Hispanic applicants occurred through the race-neutral law, not through the affirmative action program. From the Brief for Fisher in Fisher I:
During the ten years from 1998 to 2008, the percentage of African American and Hispanic students who enrolled in the incoming freshman class at UT increased from 16.2% to 25.5%, with most of the increase attributable to the Top 10% Law. SJA 156a. Indeed, over the same ten-year period, the percentage of African American and Hispanic students enrolling through the Top 10% Law increased from about 44% to almost 86%. SJA 156a-157a. The trend has continued. [. . .] UT’s President recently announced that “[f]ifty-two percent of our [2010] freshman are minority students, including 23 percent who are Hispanic, reflecting the changing demographics of the state.” http://www.americanbar.org/content/...rt_preview/briefs/11-345_pet.authcheckdam.pdf
But a large portion of the African American and Hispanic students admitted under the Top 10% Plan are from schools in which the majority of students are African American and/or Hispanic. UT argues that the university needs the race-preferential policy, described above, in order to bring in those exception Black and Hispanic students from more integrated high schools who did not graduate in the top 10% of their classes. Fisher notes that the Black and Hispanic students admitted under the race-preferential policy are more affluent and less likely to be the first in their families to attend college. It should also be noted that the race-preferential policy only applies to “underrepresented” minorities, not to Asians. Apparently some Asian applicants are denied admission to UT in favor of African American or Hispanic students who have a lower GPA.
So should the Court uphold this admission policy?
(For those who seek more information on this case, you will enjoy the briefs: http://www.americanbar.org/publications/preview_home/2015_2016_briefs/14-981.html)
One final issue: In Grutter, Justice O’Connor’s majority opinion spends several paragraphs on the fact that government-approved racial discrimination is contrary to the “core purpose “ of the Equal Protection Clause, and therefore such schemes for remedial purposes “must have a logical end point.” The nature of the principle that temporarily upholds an offense against the Constitution has always been problematic and difficult for the Court to articulate, as the principles that make a law or government policy constitutional should be the same today as tomorrow. This axiom of continuity underpins the doctrine of stare decisis. So, at what point should affirmative action admission policies be held “no longer constitutional”? How should that “logical end point” be determined?
