Affirmative Action Survives Another Attack: Fisher v. University of Texas

By Leland Ware 

Louis L. Redding Chair and 

Professor for the Study of  

Law and Public Policy 

University of Delaware

In Fisher v. University of Texas the Supreme Court once again affirmed the constitutionality of universities’ use of race conscious admission policies.[1] This is the latest chapter in a decades-long battle over the legitimacy of affirmative action. This episode began when Abagail Fisher was denied admission to the 2008 entering class at the University of Texas (UT). She subsequently filed suit contending UT’s affirmative action admissions policies were unconstitutional because they went beyond promoting the educational benefits of diversity and sought to achieve a student body that reflected the of State of Texas' racial composition. Fisher also argued that UT had not given adequate consideration to race-neutral alternatives. Her other argument was minorities had already achieved a "critical mass" under Texas’ "Top Ten Percent" law, making additional efforts to promote diversity unnecessary.

UT’s admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Students compete for admission against other students in their respective pools. Texas residents are allotted ninety percent of all available seats. Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices. The academic index is based on SAT scores and grades.

The personal index is based on a score awarded for of two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file. Race is considered as one element of the personal achievement score but that is only one component of the total personal academic index.

This case has been up and down in the courts for eight years. The first round started in a federal trial court. It entered summary judgment in the University’s favor and the Court of Appeals subsequently affirmed. The Supreme Court granted certiorari and vacated the of the Court of Appeals’ judgment because it had, in the majority’s view, applied an unduly deferential, “good-faith” standard in evaluating the constitutionality of the UT’s pro­gram. On remand the Court of Appeals again affirmed the trial court’s entry of a summary judgment in the University’s favor. In an unusual move, the Supreme Court agreed to hear the case for a second time.

At this juncture the only question before the Court was whether Fisher had shown, by a preponder­ance of the evidence, that she was denied equal treatment when her application was rejected. Laws and policies that use racial classifications are subjected to “strict scrutiny.” To survive this exacting standard of review a university must show that its purpose is substantial and constitutionally permissible and that its use of a racial classification is necessary to accomplish the purpose asserted. Moreover, the institution must bear the burden of demonstrating that workable, race-neutral alternatives will not suffice. However, once a university provides a reasoned and principled explanation for its decision, deference must be accorded to the institution’s academic judgment regarding the educational value of a diverse student body.

In this case the majority concluded that UT stated concrete and precise goals including: ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizens. These interests were found to be sufficiently compelling in the 2003 decision in Grutter v. Bollinger. UT also provided a reasoned and principled explanation for its decision in a 39-page proposal written after a year-long study determined that its race-neutral policies and programs did not meet its goals.

Fisher made a number of arguments that were rejected by the Court. She claimed that the University did not articulate its compelling interest with sufficient clarity because it has failed to state more precisely what level of minority enrollment would constitute a critical mass. However, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flow from student body diversity.

It is not a goal that can be reduced to pure numbers. Since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

Fisher also argued that UT did not need to consider race because it had already achieved a critical mass of minority students under the “Top Ten Percent” plan and its race-neutral holistic review. However, the record showed that the University studied and deliberated for months and concluded that race-neutral programs had not achieved the University’s diversity goals. This determination that was supported by significant statistical and anecdotal evidence.

Fisher contended that considering race was unnecessary because it had only a minor impact on the number of minority students admitted. The record established that the consideration of race had a meaningful, albeit limited, effect on freshman class diversity. That race consciousness played a role in only a small portion of admissions decisions showed narrow tailoring, not evidence of unconstitutionality.

Finally, Fisher argued that there were other, race-neutral means to achieve the University’s goals. However, the record showed that none of those alternatives was a workable means of attaining student body diversity. The Court rejected all of Fisher’s arguments after concluding that UT’s consideration of race was narrowly tailored to achieving its compelling educational interest in promoting student body diversity. Although “it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity” the Supreme Court has confirmed that race conscious affirmative action is a legitimate means of promoting diversity.

Racial Resentment and Samuel Alito’s Dissent

The affirmative action debate extends beyond the boundaries of Fourteenth Amendment jurisprudence. Much of the opposition to affirmative action is rooted in racial resentment; an intense, emotionally-charged objection to policies designed to assist racial minorities. This attitude is on display in Samuel Alito’s rambling and unfocused 50-page dissenting opinion. Today, although most whites subscribe to the norm of racial equality, negative stereotypes persist that provoke racial resentment. The disposition is not usually overt; it tends to reside at an unconscious level deep within an individual’s psyche. Racial resentment is different from ordinary envy or jealousy because it includes feelings of injustice.

Many whites believe that affirmative action programs benefit undeserving minorities in ways that disadvantage better qualified whites. Their racial resentment is often expressed by anger, bitterness, or similar concerns related to beliefs about special dispensations given to racial minorities. These special considerations violate affirmative action opponents’ views of fairness. Persons who harbor racial resentment are offended by claims of racial discrimination as a justification for affirmative action. They believe that racism has been largely eradicated and pointing to race as a cause of continuing inequality is unfair. This view is unrealistic and empirically inaccurate but intense emotions can override reality. Simmering racial resentment animates Alito’s dissent and it is not the first time it has been exposed in his opinions.

---

[1] The majority included Justices Anthony Kennedy, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. Samuel Alito, John Roberts and Clarence Thomas dissented. Elena Kagan recused herself and did not participate.

Foster v. Chatman: Supreme Court Rejects Pretextual Excuses for Race-Based Jury Selection

By Leland Ware

Louis L. Redding Chair and 

Professor for the Study of 
Law and Public Policy

University of Delaware

Timothy Foster was convicted of capital murder and sentenced to death by a Georgia court. During jury selection the prosecutors used peremptory challenges to strike all of the black prospective jurors. Foster argued that the State’s use of the strikes was racially motivated in violation of Batson v. Kentucky. In Batson the Supreme Court held that when a defendant in a shows that there is a possibility that juror strikes are being used in violation of Equal Protection Clause of the Fourteenth Amendment, the State must prove that the challenges have a legitimate, nondiscriminatory reason. In this case the Supreme Court concluded that the prosecutors’ misrepresentations of the record and persistent focus on race compelled it to conclude that striking African American jurors was motivated by a discriminatory intent. 

This case originated in 1986 and went back and forth in trial and appellate courts in Georgia for several years. While proceedings in the Georgia courts were pending, Foster used the Georgia Open Records Act to obtain copies of the files used by the prosecution during his trial. The prosecutor’s notes had each black juror’s name highlighted and circled with a “B” written next to it. Other notes in the file refuted the prosecutors’ race-neutral explanations for excluding prospective jurors who were African Americans. 

The prosecutors contended that they made a last-minute decision to strike a black juror, Marilyn Garrett after another juror, Shirley Powell, was excused. The Supreme Court found that explanation was flatly contradicted by evidence showing that Garrett’s name appeared on the prosecution’s list of prospective jurors the prosecution intended to strike from the outset. The record also refuted several of the other race neutral reasons the prosecutors gave for striking Garrett. For example, the prosecutors said they struck Garrett because the defense did not ask for her thoughts about insanity, alcohol, or pre-trial publicity. However, the record showed that the defense asked Garrett multiple questions on these topics.

The prosecutors gave other neutral justifications for striking Garrett. However, the Supreme Court found that those explanations were not credible because of the State’s willingness to accept white jurors with the same characteristics. For example, the prosecutors claimed they struck Garrett because she was divorced and, at age 34, too young. However, three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve.

The record similarly undermined the justifications proffered by the prosecution for striking a black prospective juror Eddie Hood. The prosecutors alleged that their only concern with Hood was the fact that his son was the same age as the defendant. But, at a subsequent hearing, the prosecutors told the court that their primary concern was with Hood’s membership in the Church of Christ. Neither of those reasons withstood scrutiny. As to the age of Hood’s son, the prosecution allowed white prospective jurors with sons of similar age to serve.

The prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record showed that those jurors were excused for reasons unrelated to their views on the death penalty. Other justifications for striking Hood did not stand up because no concerns were expressed with regard to similar white prospective jurors. Chief Justice John Roberts Jr, called the prosecutors’ race-neutral justifications “nonsense” that “reeks of afterthought.” Writing for the 7-1 majority, Roberts concluded that prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, required a ruling that striking the black prospective jurors was motivated by a discriminatory intent. The only dissent was filed by Clarence Thomas, the only African American justice on the Supreme Court.

Criminal justice scholars have complained for decades about the exceedingly high levels of prosecutorial misconduct and institutional discrimination in the criminal justice system. This is another example of a flawed system in need of a complete overhaul. This is not the fault of a few bad apples. The longstanding culture of racism among law enforcement officials will not be reformed until the American public faces this uncomfortable reality.