Toppling the Affirmative Action Apple-Cart

The Supreme Court’s next term could sound the death knell for affirmative action.

The Court will hear arguments in the case of Fisher v. University of Texas at Austin and could use the opportunity to declare affirmative action in the higher education admission process to be unconstitutional. This is the first time that the Court has agreed to hear a higher education affirmative action case since Chief Justice John Roberts was appointed in 2005. However, the Roberts Court has struck down affirmative action plans in other contexts, providing little hope that UT’s affirmative action policy, or the more general principle of affirmative action in public university admissions, will survive the Court’s decision in Fisher.

Nearly ten years ago, then-Justice Sandra Day O’Connor forecast in Grutter v. Bollinger that the need for affirmative action would end in 25 years. Grutter upheld an affirmative action policy at University of Michigan Law School. While O’Connor’s purported expiration date on affirmative action seemed both arbitrary and optimistic, the Court’s willingness to hear Fisher and potentially end affirmative action only nine years after Grutter is even more disheartening.

Abigail Fisher is a white woman who brought suit against the University of Texas after it rejected her for admission. She claims that the university’s consideration of race in the admissions process violates the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause ensures that state governments apply the law equally to all.

Most of UT’s freshman spots go to Texas high school seniors in the top 10 percent of their class who automatically receive admission under a state legislative initiative called the “Top Ten Percent Plan.” The remaining seats go to students who qualify under a multi-factor formula. The UT policy that Fisher is challenging factors an applicant’s status as an underrepresented racial or ethnic minority as a “special circumstance” into that formula.

Fisher first argues that UT’s policy violates Grutter, but argues in the alternative that Grutter should be overruled. Fisher contends that the policy is unconstitutional because it does not meet the strict scrutiny test, which is the highest constitutional burden for a policy to meet. The strict scrutiny standard requires that a race-based policy be narrowly designed to meet a compelling government interest. Additionally, Fisher argues that the Top Ten Percent plan is race-neutral and already achieves diversity. She also claims that her “academic credentials exceeded those of many admitted minority candidates.”

The university contends that its policy meets the strict scrutiny test because it was modeled on and improved upon Grutter, arguments that were successful in the lower courts. The university also argues that the case is moot, because Fisher has already graduated from another university, and UT has offered to refund the modest fees that she paid.

The justices hostile to affirmative action

The Court that will hear Fisher is very different from the Court that decided Grutter and Gratz, the last two higher education affirmative action cases that the Court heard. Significantly, the Court now includes five justices who are generally hostile to affirmative action.

Since Grutter, the conservative Justice Samuel Alito has been appointed to replace Justice O’Connor. Notably, on Alito’s 1985 job application for promotion in the Justice Department, he indicated that he belonged to Concerned Alumni of Princeton, a group actively opposed to the admission of women and minorities, which even published a pamphlet claiming that “racial tensions” caused an upswing in campus crime.

Meanwhile, Chief Justice John Roberts, who replaced former Chief Justice William Rehnquist, has a long history of antipathy toward federal civil rights law. Indeed, prominent Court watchers have suggested that the Roberts Court is determined to press its conservative agenda upon several race-related issues, including the Voting Rights Act.

Significantly, Chief Justice Roberts authored the 2007 decision in Parents Involved in Community Schools v. Seattle School District. In that case, parents successfully challenged a plan that took race into account when assigning students to the city’s high schools in order to increase the schools’ racial diversity. Roberts compared Seattle’s policy to segregation and Brown v. Board of Education.

He wrote:
Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. . . . The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
For somewhat different reasons, Justice Clarence Thomas has long opposed affirmative action. In his concurrence in Missouri v. Jenkins, Thomas opined that a Kansas City school district’s desegregation policy to remedy “white flight” to the suburbs was unconstitutional. He took issue with what he saw as “the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.”

The justices favorable toward affirmative action

It is generally assumed that justices Ruth Bader Ginsburg and Stephen Breyer, and Sonia Sotomayor will probably side with UT and in support of affirmative action.

But Justice Elena Kagan has recused herself, due to the fact that she was Solicitor General when the Justice Department filed a brief in support of UT before the Fifth Circuit.

The other newest justice – Sonia Sotomayor – is known to have a favorable view of affirmative action. This is Sotomayor’s first affirmative action education case since she was elevated from the Second Circuit to replace Justice David Souter in 2009. While on the Second Circuit, Sotomayor was on the three-judge panel that upheld the New Haven Fire Department’s policy of taking race into account when reviewing promotion examinations on which whites received higher average scores in Ricci v. DeStefano. The policy at issue was a voluntary effort by the department to rectify generations of racial exclusivity in hiring. In 2009, just prior to Sotomayor’s elevation, the Supreme Court reversed the Second Circuit’s decision. The Court held that by refusing to certify the examination results in favor of whites, the fire department violated Title VII’s prohibition on intentional employment discrimination. The Court’s holding in Ricci once again illustrates the Court’s disfavoring of racial equality policies.

Sotomayor has also personally experienced the significance of affirmative action. She has called herself a “perfect affirmative action baby” who, despite slightly lower than average admission test scores, excelled at Princeton and Yale, graduating summa cum laude from Princeton and serving as an editor of the Yale Law Journal.

Kennedy, Kennedy, Kennedy!

So, with four presumed votes against the university and three clear votes for it, all attention turns toward Justice Anthony Kennedy (if the Court splits 4-4, the decision of the lower court in UT’s favor stands without precedential effect).

Kennedy dissented in Grutter, opposing the University of Michigan Law School’s affirmative action policy, and joined the majority in Gratz v. Bollinger, rejecting University of Michigan’s undergraduate affirmative action policy. The two cases were decided on the same day in 2003. While the Court eliminated the option of assigning an automatic set of points based on race in Gratz, colleges and universities can consider racial minority status and ethnic identity as a factor when granting admission thanks to Grutter. Despite Kennedy’s Grutter dissent, some still hold out hope that he could vote to uphold the university’s plan in Fisher. His Grutter dissent focused on whether the admission program took “account of race as one, nonpredominant factor” and individually assessed each applicant.

This emphasis on individual assessment also informed Kennedy’s concurrence in Parents Involved. In that case, Kennedy did not think that Seattle’s generalized policy met his “last resort” standard partly because students were not individually evaluated. Yet, his opinion shows that individualized policies that holistically factor in race can meet that standard. Kennedy wrote, “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue” because de facto segregation is still an issue. He responded to Roberts by stating, “The plurality’s postulate that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ is not sufficient to decide these cases.”

Nevertheless, Kennedy is more likely to vote to reject the UT policy and even overturn Grutter. From Grutter to Gratz to Parents Involved, Kennedy has voted against affirmative action education policies time and time again (he also wrote the majority opinion in the firefighters case).

In addition, Kennedy despises minority quotas. In Grutter, he went so far as to reprint a list of the percentages from the law school’s admissions offers, which shows that the percentage of minority offers never fell below 12 percent over 12 years – evidence, to Kennedy, of a quota system. According to his reasoning, quotas signify a lack of individual assessment, and thus the policy did not meet the strict scrutiny standard. Thus, if UT’s policy bears the slightest hint of a quota, Kennedy will likely find grounds to reject it.

The consequences of a pro-Fisher ruling

If the Court were to overturn Grutter and end affirmative action in public higher education once and for all, the effects could be felt far and wide. Let us not forget that there is a reason that affirmative action was developed in the first place. In Justice Thurgood Marshall’s 1978 impassioned separate opinion in Regents of University of California v. Bakke, he wrote,
For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.
Many schools, including UT, have expressly incorporated the “Grutter system” into their admission programs, so a reversal of Grutter would constitute an earthquake in university admissions.

And let us remember that affirmative action still matters. Statistics on test scores show performance disparities along racial lines persist and some minorities do benefit from affirmative action policies. Also, considering race as one of many factors in the admission process is a modest way to promote diversity and to enrich the learning environment for all. Broader access to educational opportunities in turn leads to a diverse, and ultimately more effective and productive, workplace.

It is distressing to reflect on the social progress made in American society, education, and the courts, only to watch as conservative political interests on the Court turn back the clock. Like the Greek myth in which Sisyphus must roll the boulder up the hill only to watch it roll back down again, Americans are being left in the lurch by a Court fueled by right-wing politics rather than justice.

Will Fisher prove to be yet another instance of politics over justice? Tune in next term to find out.