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.
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