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Monday, June 24, 2013

Affirmative Action Stands, 7-1, in Fisher v. Texas: Justice Kennedy Says “When We Say ‘Strict Scrutiny’, We Mean It!”

By Sylvia Lazos, Justice Myron Leavitt Professor of Law

This morning the Supreme Court issued its opinion in Fisher vs. University of Texas, affirming on a vote of 7-1, that affirmative action policies in university admissions are constitutional. Many had speculated that this case would give the new conservatives on the Court (made up of Justices Roberts, Alito, Thomas and Scalia) the opportunity to overturn Grutter v. Bollinger, decided a decade ago, when Justice O’Connor sat on the bench rather than Justice Alito. However, after this morning’s opinion it is clear that as long as Justice Kennedy sits on the Supreme Court, Grutter’s precedent stands solid, albeit with some caveats. Although it was clear by the concurrences that conservatives Justices Scalia and Thomas had lobbied to overrule Grutter, the majority of the Court reaffirmed that selective public higher education institutions can use affirmative action in admissions, without violating the Equal Protection clause. Universities can consider scores from high-stakes tests like SATs and LSATs, high school GPAs, factors that indicate an individual’s qualities of leadership and perseverance which are highly related to graduation success, as well as personal cultural background factors, such as socio-economic status and race.

Ten years ago, Justice Kennedy was in the dissent in Grutter v. Bollinger, where he argued that while he agreed that attaining diversity is clearly a compelling interest for state universities, he strongly disputed whether the Court had properly applied “strict scrutiny.” In Grutter, Kennedy observed that the University of Michigan Law School almost always admitted African Americans with LSAT/GPAs combined scores at a certain level, while those same combined scores did not result in such high likelihood of admissions for white applicants. Kennedy thought that this pattern was sufficient to indicate that race had been used as a determinative factor in the Michigan admissions process. However, the majority then saw it otherwise. Justice O’Connor, who wrote the majority opinion in Grutter, argued that given the complexity of the University of Michigan Law School’s admissions process and their diligent individual review of each file, that the Court could assume the good faith of the admissions officers and defer to their decisions, and find as a matter of law that race was one of many factors and not the determinative factor in admissions. In Fisher v. Texas, Justice Kennedy rejects Grutter v. Bollinger’s interpretation of how strict scrutiny review is applied, and makes clear that “the particular admissions process used for this objective [of achieving diversity in the student body] is subject to judicial review… the universities must demonstrate with clarity… that use of the [racial] classification is necessary .. [and] narrowly tailored.” To be consistent with strict scrutiny, universities can “receiv[e] no deference.” The admissions process must “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Pursuant to the Legislature’s mandate, University of Texas has in place the Top Ten Percent program, which, as its name indicates, admits the top ten percent of every high school class. This is a race neutral admissions process that easily passes constitutional muster. The factual question in Fisher v. Texas was whether Texas’ supplemental undergraduate admissions plan, which awards points for a composite “personal” cultural background/socio-economic class factor, is an admissions criterion where race, “is a meaningful factor” per Justice Kennedy’s observation in Fisher, or a determinative race-conscious factor. The Supreme Court has dispatched this issue to the lower courts, with instructions by Justice Kennedy that “[s]trict scrutiny cannot be strict in theory but feeble in fact.”

Justice Ginsburg’s lone dissent anticipates a future case – perhaps Fisher itself after remand -- where the Supreme Court will entertain the issues posed in Texas v. Fisher “all over again.” The purpose of Texas’ supplemental admissions plan is to achieve a “critical mass” of minority students in small programs and small classes. During oral arguments, Justice Kennedy was troubled whenever the University of Texas seemed to factually concede that in order to achieve “critical class” its admissions program had to have a target range for the admission of a certain number of minorities, or percentages of the class. Justice Kennedy saw “an inconsistency” in Texas’ claim to race neutral admissions and Texas’ actions in pursuit of its goal of trying to achieve “critical mass.”

Justice Ginsburg observes in her dissent that race is interrelated with class and geographical segregation, particularly in the South. While Texas’ Top Ten program is nominally race neutral, it was mandated by the Texas Legislature as a political compromise because “everyone knows” that given Texas’ segregation history, the Top Ten program would yield a diverse class. The Top Ten percent of an inner city Houston high school would be almost all African American and Latino, while the Top Ten Percent of an affluent suburban high school class would be almost all white. Justice Ginsburg argues that it is better to be forthright about the use of race-consciousness in admissions rather than use “camouflage to maintain minority enrollment.” It is constitutionally preferable, Ginsburg argues, to “candidly disclose … consideration of race [rather than] conceal it.” Ginsburg seems to predict that the lower courts’ trial will be an exercise in whether University of Texas can pull off the legal artifice of proving that their admissions program is not race conscious. In a footnote, she quotes Professor Thomas Reed Powell’s famous statement, “If you think that you can think about a thing inextricably attached to something else without thinking of that thing which it is attached to, then you have a legal mind.”

There is a crisis in K-12 education. As the book, Whither Opportunity?, shows with devastating empirical proof, children who are segregated by poverty, which means that they are likely to be African American and Latino, have a much lower opportunity of succeeding in K-12. They will thus have lower scores in the high stakes college admissions tests, such as SAT. By contrast, children whose parents are affluent, who are likely to be predominantly White, are much better prepared for college. These children will have higher SAT and LSAT scores. Ginsburg, as the most elderly justice on the Court, seems to be warning us that courts and political leaders must come to terms with such “intextricabl[e] attach[ments]” between race and college readiness. Affirmative action is an “after the fact” fix to the weak pipeline K-12 system that produces racially segregated success outcomes.

Five years ago, in Seattle, Justice Thomas argued in his concurrence that political decision makers must find the political will to fix the racial and class inequities of K-12; affirmative action could not be the principal fix to the racial inequities of K-12 outcomes. Both Ginsburg and Thomas are right. Until taxpayers and political leaders resolve to fix K-12, courts will imperfectly deal with affirmative action. Decisions, such as Grutter v. Bollinger and now Fisher v. Texas, will appear unsatisfactory and some sort of “punt,” as the Court deals with this very difficult quandary.