The U.S. Supreme Court is taking up the issue of affirmative action in public education. The Court has not ventured into this territory in nearly 10 years. The Court might use this case to wipe out race-based admissions in higher education for good.
The case, Fisher v. University of Texas at Austin, will be decided in the Court’s 2012-13 term. In January 2011, the Fifth Circuit Court of Appeals, sitting in New Orleans, upheld the constitutionality of the University of Texas’ admissions policy, which takes race into account in assessing a student’s application. The question is whether that policy violates the Equal Protection Clause of the U.S. Constitution.
Like many public universities, the University of Texas uses a complex formula in reviewing applications. Students who place within the top 10 percent of their high school classes are guaranteed admission to UT. The complexity lies in the remaining applicants. UT reviews those applications through Academic and Personal Achievement Indices. The Academic Index tries to predict freshman GPA by examining the student’s high school class rank and standardized test scores. An applicant may receive admission on the basis of a strong Academic Index alone. The personal achievement score is more complex, triggering the constitutional challenge that the Supreme Court will resolve. In addition to considering the applicant’s two written essays, under the personal achievement score, admissions officers size up the applicant based on leadership, awards, honors, work experience, extracurricular and community activities. UT also considers the applicant’s high school grades relative to the grades of her peers. Finally, for the personal achievement score, the admissions office considers the applicant’s race.
As summed up by the Fifth Circuit Court of Appeals—which upheld the UT admissions process as constitutional—“[n]one of the elements of the personal achievement score—including race—are considered individually or given separate numerical values to be added together. Rather, the file is examined as a whole in order to provide the fullest possible understanding of the student as a person and to place his or her achievements in context.” For this reason, said the Fifth Circuit, “given the mechanics of UT’s admissions process, race has the potential to influence only a small part of the applicant’s overall admissions score.”
How We Got Here
Added to the Fourteenth Amendment in the wake of the Civil War, the Equal Protection Clause reads, “no state shall deny to any person within its jurisdiction the equal protection of the laws.” This simple phrase has generated endless court rulings interpreting its meaning. As few provisions of the Constitution are interpreted literally, the Equal Protection Clause does not guarantee pure equality. Generally, the government can treat people differently so long as it has a rational basis for doing so. If the government is treating different races differently, however, it needs a compelling reason. The “compelling interest” test is difficult for the government to overcome. If a court finds that the government took race into account in making decisions, the government must prove not only that it had a compelling reason for doing so, but that it adopted the narrowest means possible to achieve that objective.
While it is hard for the government to defend a race-based policy, courts have traditionally given public educational institutions more latitude when they take race into account in making admissions decisions. In 1977, the Supreme Court decided Regents of the University of California v. Bakke, holding that the university’s medical school could not use racial admissions quotas. However, by a 5-4 vote, the Court said that the school had a compelling interest in a diverse student body and could consider race as a “plus” factor in its admissions program. The deciding vote was cast by Lewis Powell, a moderate Republican appointed by President Nixon.
The Bakke case guided admissions decisions in higher education for over two decades. In the meantime, the culture wars raged in America, as conservatives criticized affirmative action as “reverse discrimination.” Meanwhile, as the Supreme Court grew more conservative through the 1980s and 1990s, it tightened the screws on affirmative action in other contexts, including governmental contracting and employment. A good example of how new personnel on the Court can make all the difference is reflected in cases involving federal affirmative action programs. In 1990, the Court ruled in Metro Broadcasting v. FCC that, in the interest of editorial diversity, the federal government had additional leeway in taking race into account in awarding broadcasting licenses to minority-controlled firms. Writing for the Court, William Brennan held that affirmative action programs by the federal government are not held to the “compelling interest” test that applies to state governments. Metro Broadcasting was a 5-4 decision. But only five years later, the Supreme Court overruled Metro Broadcasting, ruling in Adarand Construction v. Pena, that the federal government cannot institute an affirmative action program without a compelling reason. While Adarand involved construction contracts, its reasoning made it much harder for the federal government to defend affirmative action programs in court. For the Supreme Court, the main difference between 1990 and 1995 was the retirement of long-time civil rights champion Thurgood Marshall in 1991, and his replacement by staunch conservative Clarence Thomas. A single personnel change in the Court can make all the difference.
While Adarand and other Supreme Court rulings have applied the compelling interest test in a variety of circumstances, public colleges have more leeway even under this strict test in implementing racial diversity programs. For this reason, in 2003, the Court held—again by a narrow 5-4 vote—that the University of Michigan Law School could take race into account in its admissions decisions. Like the Bakke case, the majority in Grutter v. Bollinger held that racial diversity in higher education is a sufficiently compelling reason for the university to consider making race one among many factors in granting applications. The University of Michigan was able to use affirmative action because race was not a determinative factor in the process.
Sandra Day O’Connor wrote the Adarand and Grutter decisions. This was no anomaly. O’Connor was a conservative pragmatist who decided cases without any strict ideology, often on narrow grounds. While her reasoning in Adarand reflected her opposition to affirmative action in general, in Grutter O’Connor made an exception for higher education, stating that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Consistent with her case-by-case approach, O’Connor added, “context matters when reviewing race-based governmental action under the Equal Protection Clause.” The majority in Grutter stated, “given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” That “special niche” is grounded in “educational autonomy.” O’Connor wrote, “‘[t]he freedom of a university to make its own judgments as to education includes the selection of its student body.’ From this premise, [in Bakke,] Justice Powell reasoned that by claiming ‘the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ a university ‘seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.’”
The Court in Grutter noted that the University of Michigan wanted a “critical mass” of minority students in light of “the educational benefits that diversity is designed to produce.” Describing these benefits at length, the Court noted:“the Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’ These benefits are ‘important and laudable,’ because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ …[N]umerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’ …These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps…is essential to the military’s ability to fulfill its principle mission to provide national security.’”
The Court further noted that law schools “represent the training ground for a large number of our nation’s leaders” and that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”
After endorsing the law school’s compelling justification for taking race into account in choosing students, the Grutter majority upheld the law school’s admissions policies because race was not a determining factor in admitting students and there was no quota in light of statistics showing that “between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent.”
The University of Texas Case
The Grutter case may have been the high water mark of Justice O’Connor’s pragmatism. She began as a staunch conservative when President Reagan appointed her to the Court in 1981. Over the years, however, O’Connor moderated her views on some issues, going so far as to re-affirm Roe v. Wade in 1992 by insisting in Planned Parenthood v. Casey that stare decisis (a legal principle that commands the Court to abide by its prior decisions) required the Court to uphold the constitutional right to abortion. Only seven years earlier, in a prior abortion case, O’Connor accused her colleagues of too-broadly protecting abortion rights. Even in the affirmative action context, O’Connor voted with a 6-3 majority in a companion case to Grutter that an undergraduate affirmative action plan in Michigan violated the Equal Protection Clause because, unlike in Grutter, the undergraduate plan placed too much weight on the applicant’s race. These nuanced distinctions made O’Connor a swing vote on an evenly-divided Court such that Supreme Court advocates often tailored their arguments in an effort to win her over.
A New Supreme Court
When Justice O’Connor retired in 2005, President George W. Bush replaced her with Samuel Alito, a conservative who has consistently sided with the Court’s conservative bloc. Legal commentators have noted over the last seven years that the Court is more prone than ever before to overrule prior cases either implicitly or explicitly. In a comprehensive article published in the New York Review of Books in 2008, law professor Ronald Dworkin took a dim view of recent Supreme Court decisions that had quickly shifted constitutional doctrine to the right: “The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.
“These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament, ‘It is not often in the law that so few have so quickly changed so much.’”
Some of these 5-4 conservative victories are well- known. In Citizens United v. Fair Elections Commission, the Court in 2010 gave corporations free rein to make independent expenditures to political campaigns. The Court in Citzens United overruled precedents from 1990 and 2003. Another 5-4 conservative victory in 2007 involved the use of racial classifications in the public schools. This case provides a guidepost in predicting what the Court will do in the University of Texas case. It does not look good for proponents of racial diversity in public education.
In the 2007 case, Parents Involved Community Schools v. Seattle School District, the Louisville and Seattle school districts tried to ensure racial diversity in their public schools. In Seattle, the district used race as one of the tie-breakers in allowing students to attend the high school of their choice. Writing for the 5-4 majority, Chief Justice Roberts held that the Seattle plan was different from the plan upheld in Grutter because Grutter involved higher education, triggering “the expansive freedoms of speech and thought associated with the university environment.” The racial balancing sought in Seattle was not a sufficiently compelling interest under the Equal Protection Clause, the majority ruled, because that “would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” In addition, “[a]llowing racial balancing as a compelling end in itself would effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Moreover, an interest “linked to nothing other than proportional representation of various races…would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.”
In the Louisville case, the district reconfigured the district boundaries to promote racial balancing. The district advanced the same policy objectives as the Seattle district. Chief Justice Roberts struck down this plan, as well. While the Louisville and Seattle school districts argued that their plans were consistent with Brown v. Board of Education’s rejection of racial segregation in public schools, Roberts crafted what is now a well-known quote that is sure to surface when the Court takes up the University of Texas case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
What Will the Supreme Court Do?
While the Supreme Court in Parents Involved adhered to the Grutter case in striking down the Louisville and Seattle plans, that does not mean the Court will re-affirm Grutter in deciding the University of Texas case. The Supreme Court picks its battles. The Court did not have to repudiate Grutter’s reasoning in deciding Parents Involved. Grutter will be on the table in the University of Texas case, and it provides the Court an opportunity to promote a “color blind” Constitution that cannot abide the governmental interest in college diversity. In light of the Court’s track record of charting new ground in cases despite contrary precedent, this is a reasonable prediction.
Indeed, in asking the Supreme Court to hear the case, the plaintiff in the University of Texas case suggested that the Court might reconsider its pro-diversity holding in Grutter.
The University of Texas modeled its admissions process on that approved by the Supreme Court in Grutter. This is why the Fifth Circuit Court of Appeals upheld the constitutionality of the Texas policy. As in Grutter, the University of Texas has a compelling justification for considering an applicant’s race in the admissions process, and race itself does not make or break an applicant’s chances for admission. For the Fifth Circuit, this may have been an easy call. But that does not mean the Supreme Court will follow suit.
As the Supreme Court is divided between four Democratic-appointed Justices and four Republican counterparts, with Justice Anthony Kennedy in the middle, the conventional wisdom in all high profile cases is that the Court will rule 5-4 either way, with Kennedy as the swing vote. That sizes up the University of Texas case. Two of the conservatives, Justices Scalia and Thomas, have already gone on record as stating that affirmative action in all its forms is unconstitutional. Scalia condemned the Grutter majority for holding that racial diversity in higher education is a compelling governmental interest. So did Justice Thomas, who wrote that “[t]he Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
While Roberts and Alito—both George W. Bush appointees—have not ruled in an affirmative action case, they tipped their hand three years ago in Ricci v. DeStefano, rejecting efforts by the City of New Haven to diversify the fire department by discarding a civil service test that had a disparate impact on minority applicants. Ricci was another closely-divided case, featuring a majority decision by Justice Kennedy, who ruled for the first time that municipalities may only dispense with these examinations if they have a “strong basis in evidence” that they violate the employment discrimination laws that prohibit a disparate impact on minority test-takers. Ricci was a loss for proponents of racial diversity in the public workplace.
Kennedy is more pragmatic than the other conservatives on the Court. In 1990, dissenting in the Metro Broadcasting case, he compared the affirmative action plan in favor of minority-controlled radio stations to apartheid-era South African policies. However, while Kennedy dissented in Grutter, he did note that “Justice Powell’s approval [in the Bakke case] of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university’s conception of its educational mission. Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.” The basis for Kennedy’s dissent in Grutter stemmed from the University’s application of its diversity policy, concluding that “the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” The future of state-sponsored diversity in higher education likely falls in the hands of the man who wrote those words.
Stephen Bergstein is a civil rights attorney in upstate New York. Photo of Justices seated from left to right: Thomas, Scalia, Roberts (chief justice), Kennedy, Bader Gisburg. Standing: Sotomayor, Breyer, Alito, and Cagan.