Sunday, June 26, 2016

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.

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