AFFIRMATIVE ACTION INAmerican Colleges After Fisher v. Texas

ON JUNE 24, 2013, THE U.S. SUPREMECOURT DECIDED THE AFFIRMATIVEACTION CASE OF FISHER V. UNIVER-SITY OF TEXAS. SOME HAD EXPECTEDTHE COURT TO STRIKE DOWN AFFIR-MATIVE ACTION PROGRAMS IN HIGHEREDUCATION. INSTEAD, THE FISHER DE-CISION CLARIFIED PREVIOUS RULINGSBY THE COURT AND GAVE INSTRUC-TIONS ON HOW LOWER COURTSSHOULD DETERMINE WHETHER AN AF-FIRMATIVE ACTION PROGRAM IS CON-STITUTIONALLY PERMISSIBLE.

Affirmative action in higher ed-ucation provokes great controversy.Affirmative action programs andpolicies attempt to create greaterdiversity on campuses by takinginto account factors such as race,sex, and ethnic origin when admit-ting student applicants. Opponentsof affirmative action argue thatthese factors should not be consid-ered, because students should beadmitted on merit alone (e.g.,grades and test scores).

Affirmativeaction programs arosefollowing the successes of the civilrights movement in the 1960s. In aspeech at Howard University in 1965,President LyndonJohnson voiced therationale for affirmative action:

Youdo not wipe away the scarsof centuries by saying: "Now,you are free to go where youwant, do as you desire, andchoose the leaders you please.", Youdo not take a man who foryears has been hobbled bychains, liberate him, bring himto the starting line of a race,saying, "You are free to com-pete with all the others," andstill justly believe you havebeen completely fair .... Thisis the next and more Pi'ofoundstage of the battle for civilrights. We seek not just free-dom but opportunity - not just

Fisher v. Texas is the most recent of a line of cases the Supreme Court has decided onaffirmative action in higher education.

legal equity but human ability- not just equality as a rightand a theory, but equality as afact and as a result.

The federal government initi-ated affirmative action programs tocontinue the push for greaterequality in American society. Afterthe passage of the Equal Employ-ment Opportunity Act in 1969, theNixon administration pressed em-ployers to hire more minorities andto help these workers rise in theranks. By the 1970s, this concertedeconomic effort broadened. ManyAmerican universities began affir-mative action programs for admis-sions decisions and hiringpractices.

One result of affirmative actionprograms is that sometimes a mi-nority applicant for school admis-sion will be preferred over white

applicants with similar or even bet-ter qualifications. This amounts toa racial preference.

Many public college and uni-versity programs have faced courtchallenges. Several cases havereached the U.S. Supreme Court.The legal question in most affirma-tive action cases is: Does this affir-mative action program violate the14th Amendment?

The 14th Amendment to theU-S. Constitution guarantees equalprotection. It reads: "No state shall, .. deny to any person within itsjurisdiction the equal protection ofthe laws." The amendment appliesto all state entities, including pub-lic colleges and universities.

BakkeThe first affirmative action case

to reach the Supreme Court was Re-gents of the University of California )0

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v. Bakke (1978). Allan Bakkeclaimed that the U.C. Davis Schoolof Medicine had unlawfully dis-criminated against him and fellowwhite applicants by reserving atleast 16 seats in each incomingclass for members of historicallydisadvantaged groups. Bakke be-lieved that the medical school's af-firmative action policies violatedthe 14th Amendment's equal pro-tection clause.

In a sharply divided ruling, theSupreme Court held in Bakke thatthe Constitution does not permitpublic institutions of higher educa-tion to apply racial quotas in ad-missions decisions. But the courtalso recognized the importance ofdiversity on college campuses, call-ing it a "compelling state interest."It therefore ruled that race could beconsidered in applications but onlyas a "plus" factor when the univer-sity reviews the many factors in anapplicant's profile.

After Bakke was decided,American colleges did away withracial quotas, but many continuedaffirmative action programs usingrace as one factor in admissions de-cisions. Even so, affirmative actioncontinued to be a hot-button issuein state politics.

In 1996, Californian voters ap-proved an amendment to the' stateconstitution that made it illegal forCalifornia public institutions -such as state universities - to dis-criminate "on the basis of race, sex,color, ethnicity, or national origin."Proposition 209 has been chal-lenged multiple times in court, buthas withstood attack. Defenders ofProposition 209 point to the risinggraduation rates at Californian pub-lic universities since the passage ofthe constitutional amendment. Op-ponents of the proposition decryhow the constitutional amendmenthas led to lower numbers of mi-nority students at California's pub-lic universities.

Gratz and GrutterTwenty-five years went by qe-

fore the court heard another affir-mative action case on highereducation. In 2003, the SupremeCourt issued two landmark affir-mative action decisions in Gratz v.Bollinger and Grutter v. Bollinger.(Both cases involved lawsuitsagainst the University of Michigan,and Lee Bollinger, the university'spresident, was named as a defen-dant in both lawsuits.)

After Bakke wasdecided, colleges did

away with racial quotas,but many continued

affirmative actionprograrns using race as

one factor inadTnissions decisions.At issue in Gratz v. Bollinger was

the undergraduate admissions sys-tem at the University of Michigan.The university had been using a 150-point scale to judge undergraduateadmissions. Applicants needed 100points for automatic acceptance. Ifapplicants came from a historicallydisadvantaged racial or ethnicgroup, they automatically received20 points. By comparison, an appli-cant with a perfect SAT score re-ceived 15 points. Jennifer Gratz, awhite applicant with above-averagetest scores and high grades, was de-nied admission to the University ofMichigan, while all minority stu-dents with Gratz's academic qualifi-cations were admitted. She sued theUniversity of Michigan, arguing thatthe undergraduate point system vio-lated the 14th Amendment.

Six Supreme Court justicesagreed with Gratz. The majority ofthe court held that the University ofMichigan's point system failed the"strict scrutiny" test. In order to passthis test, the university needed to

show that a compelling state inter-est justified its admissions system.Additionally, the University of Michi-gan's point system would need to be"narrowly tailored" toward achiev-ing the compelling interest.

The majority in Gratz v.Bollinger did not question the uni-versity's stated compelling interest:diversity within the student body.Instead, the court asserted that theUniversity of Michigan's admis-sions system was not narrowly tai-lored to the university's interest ina diverse student body. The pointsystem did not allow for an indi-vidual analysis of each applicant.The court stated:

Justice Powell's opinion in Bakkeemphasized the importance ofconsidering each particular appli-cant as an individual, assessingall of the qualities that individualpossesses, and in tum, evaluatingthat individual's ability to con-tribu~e to the unique setting ofhighei-education. The admissionsprogram Justice Powelldescribed,however, did not contemplatethat any single characteristic au-tomatically ensured a specificandidentifiable contJ.ibution to a uni-versity's diversity.

Grutter v. Bollinger was decidedon the same day as Gratz. The Uni-versity of Michigan Law School hadan admissions policy that used raceand ethnicity as a plus factor. Thepolicy aimed to produce "racial andethnic diversity with special refer-ence to the inclusion of studentsfrom groups which have been his-torically discriminated against, likeAfrican-Americans, Hispanics andNative Americans, who without thiscommitment might not be repre-sented in our student body in mean-ingful numbers." The school wanteda "critical mass" of underrepre-sented students to ensure "their abil-ity to make unique contributions tothe character of the Law School."

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Barbara Grutter, a white appli-cant who was denied admission intothe University of Michigan LawSchool, challenged the school's ad-mission policy. She charged that thepolicy was unconstitutional and rep-resented reverse discriminationagainst white applicants.

In a 5-4 vote, the court upheldthe law school's practices. Writingfor the majority, Justice Sandra DayO'Connor stated that the Universityof Michigan Law School's admis-sions standards passed the strictscrutiny test. The law school had acompelling reason for furnishing aqualified and diverse student body,which could prepare students forthe diverse world beyond lawschool. It also had used appropri-ate means to achieve its compellinginterest. Michigan understood thata student could add to the qualityand diversity of the student body inmany ways, and therefore it con-sidered numerous factors in its ad-missions decisions. Unlike theundergraduate admissions programin Gratz, the law school engaged inan individual analysis of each ap-plicant. Although the University ofMichigan used racial preferences,the law school's interest in studentdiversity included much more thansimply racial and ethnic makeup.

One of the most surprising as-pects of Justice O'Connor's opinionwas the timetable that she set foraffirmative action programs.O'Connor stated all these programsneeded "sunset provisions" inplace, so that "all race-consciousadmissions programs have a termi-nation point." The judge also fore-cast when such a termination pointwould arrive: "We expect that 25years from now, the use of racialpreferences will no longer be nec-essary to further the interest ap-proved today." I

After Gratz and Grutter were de-cided, many universities that hadbeen uncertain about the legality of

NATIONAL OPINON POLLS ON AFFIRMATIVE ACTIONDo you approve or disapprove of affirmative action admissions programs atcolleges and law schoolS that give racial preferences to minority applicants?

Approve Disapprove Unsure29% 68% 3%

SOllrce: CNN/ORC Poll June 2013.

In order to make up for past discrimination, do you favor or oppose programswhich make special efforts to help blacks and other minorities get ahead?

Favor Oppose 'Other Unsure/Refused68% 24% 2% 6%

Source: Public ReligionResearch institute, May 2013,

Of the two following statements on affirmative action programs, which one comescloser to your own point of view. Affirmative action programs are still needed tocounteract the effects of discrimination against minorities, and are a good idea aslong as there are no rigid quotas. OR, Affirmative action programs have gone toofar in favoring minorities, and should be ended because they unfairly discriminateagainst whites.

Still needed

45%

Shouldbe ended45%

Unsure

10%Source: NBC News!

Waif Street Journal Poll, June 2013

top 10 percent of their high schoolclass are assured admission intoany public university in the state.The majority of the University ofTexas' entering freshmen comefrom this admissions tier.

For those applicants who do notfall within the top tier, the universityapplies a separate admissions Clite-ria. Admissions counselors evaluatea greater number of factors thanclass rank when looking at applica-tions in the second tier. The Univer-sity of Texas reviews factors such asstandardized test scores, personalessays, examples of leadership, workexperience, and race and ethnicitywhen making admissions decisionsin the second tier.

Abigail Fisher, a white Texan,applied to the University of Texasat Austin in 2008, when she was asenior in high school. Fisher wasnot in the top 10 percent of herhigh school class, so her applica-tion was evaluated under the sec-ond tiel' of the university'sadmissions approach. After theuniversity denied her admission,Fisher sued the University of ).

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race-conscious admissions policieseither became cautious about imple-menting affirmative action programsor cancelled their race-consciousplans altogether. The University 'ofMichigan, which closed its affirma-tive action program because ofGratz, witnessed a downturn in mi-nority enrollment for the next sev-eral years. Over the past decade,several more states, includingMichigan, have passed bans onface-conscious admissions. (TheMichigan ban was challenged incourt, and unlike the bans in otherstates, a federal appeals courtstruck it down in 2011. The casewas appealed to the U.S. SupremeCourt, which will issue its decisionduring the 2013-14 term.)

Background to FisherAfter the Gratz and Grutter de-

cisions, the University of Texas atAustin enacted a two-tiered admis-sions approach for undergraduateapplications. The top tier waslinked to the Top Ten Percent Lawpassed by the state legislature inthe mid-1990s. Under this law, allTexas high school students in the

Texas. She claimed that the uni-versity's consideration of race im-properly influenced the outcomeof her application.

Employing the language of theUniversity of Michigan Law School'sadmissions policies, Fisher arguedthat Texas's top tier approach to un-dergraduate admissions - the TopTen Percent tier - already achieveda "critical mass" of diverse perspec-tives in the classroom, and thereforethe additional consideration of racein the second tier admissions policywas unnecessary. The University ofTexas responded that the diversitygained from the TopTen Percent tieris largely due to the school segrega-tion present in Texas public schooldistricts. By adding more varietywithin minority groups at the uni-versity - a goal that the Universityof Texas termed "diversity within di-versity" - the second tier of the uni-versity's admissions approachsupplies an extra degree of hetero-geneity to the student body.

Both the district court and thecourt of appeals ruled that the Uni-versity of Texas's two-tiered admis-sions approach fit within theconstitutional framework set up byBakke and Grutter. It thus did notviolate the equal protection clauseof the 14th Amendment. Fisher ap-pealed the lower courts' rulings tothe Supreme Court, which ac-cepted review of the case.

Fisher v. University of TexasThe case was one of the most

highly anticipated decisions of theyear. Many legal experts expectedthe court to make a major ruling onaffirmative action. In a 7-1 opin-ion, however, the Supreme Courtdecided to remand the case backdown to the Fifth Circuit Court ofAppeals. But this seemingly anticli-mactic ruling did provide greaterdefinition to the legal state of affir-mative action in American collegesand universities.

The University of Texas admits all students in the top-10 percent of their high school graduat-ing class. It has a separate admissions process for those students not in the top-10 percent.

The majority decision upheldGratz and Grutter in key respects.According to Justice AnthonyKennedy, who wrote the majorityopinion, the academic and profes-sional benefits that arise from a di-verse classroom are still consideredto be a compelling government in-terest. Additionally, racial prefer-ences are still constitutionallypermissible in limited contexts.

Justice Kennedy instmcted pub-lic universities to consider race-neu-tral paths to a diverse educationalenvironment. Bakke had assertedthat race-conscious policies werepermissible only if they were able to"demonstrate that their methods ofusing race 'fit' a compelling state in-terest 'with greater precision thanany alternative means.' " Accordingto the majority, a race-conscious ad-missions approach can only pass thestrict scrutiny test if it is " 'necessary'for a university to use race to achievethe educational benefits of diversity"and "no workable race-neutral alter-natives would produce the educa-tional benefits of diversity."

The Supreme Court remandedthe Fisher case to the lower courtsbecause the lower courts had not

been stringent in their review. Thelower courts had deferred to theUniversity of Texas' judgment that ithad made a good faith effort in nar-rowly tailoring its admissions crite-ria. But i. the majority in Fisherrejected this passive judicial ap-proach and argued that it is the dutyof federal courts, not institutions ofhigher education, to perform a strictscrutiny assessment: "Strict scrutinydoes not permit a court to accept aschool's assertion that its admis-sions process uses race in a permis-sible way without a court givingclose analysis to the evidence ofhow the process works in practice."It is up to federal courts to deter-mine whether racial preferences inthe particular university are "essen-tial to its educational mission."

In their concurring opinions,Justice Scalia and Justice Thomaswent further than the majority onthe question of affirmative action.These justices believe that all racialpreferences in higher education ad-missions decisions are indefensibleunder the 14th Amendment.

Justice Ginsburg provided thelone dissent in Fisher. In her opin-ion, she asserted that the University

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of Texas's two-tiered admissions ap-proach followed the Grutter prece-dent and ought to be deemedconstitutionally appropriate.

the strict scrutiny requifements.They will not be able to defef to auniversity's assessment that its ownadmissions formula is necessary ,tothe achievement of a compelling in-tefest and that the university imple-ments the formula using narrowlytailored means. Courts now mustdiscern the necessity of race-con-scious policies, case-by-case.-

Consequences of FisherIn many ways, the Fisher deci-

sion represents a judicially moder-ate opinion. Instead of attackingthe controversial topic of affirma-tive action head-on, the court optedfor an indirect approach, focusing -on questions of judicial procedureand keeping the Bakke, Gratz, andGrutter precedents intact.

In fact, after hearing the court'sdecision, the University of Texas re-sponded, "Today's ruling will haveno impact on admissions decisionswe have already made or any im-mediate impact on our holistic ad-missions policies."

Although the University of Texasfeels comfortable with its current ad-missions policies, many legal schol-ars believe that the Fisher decisionwill make univefsities even moreleery about how they incorporateracial preferences into admissionsdecisions. Because Fisher directspublic universities to explore race-neutral options before embracingrace-conscious admissions policies,pressure will be placed on universi-ties to demonstrate clearly the needfor affirmative action programs.Fisher may detef universities fromusing race-conscious admissions cri-teria. Instead, pressured by conser-vative voters and legal groups aboutthe empirical justification fOf racialpreferences, univefsities likely maybegin emphasizing applicants' so-cioeconomic status and family datain order to earn greater diversity inthe classroom.

Fisher tremendously affects fed-eral courts also. Lower courts willhave to be more meticulous whendeciding cases regarding affirmativeaction in higher education. Courtswill be requifed to subject publicuniversities' admissions policies to