SCOTUS to UT Austin: Affirmative Action Ain’t Easy | VALID | #TWIBnation

SCOTUS to UT Austin: Affirmative Action Ain’t Easy

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Nothing is ever easy with the United States Supreme Court. Take, for example, Fisher v. University of Texas at Austin, No. 11-345 (U.S. Sup. Ct., June 24, 2013) (.pdf file), one of Monday’s more notable decisions, which involves the legality of the University of Texas’s affirmative action policy under Gratz v. Bollinger, 539 U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), and Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

In Fisher, the plaintiff, a white woman who was denied admission into the University’s flagship institution, sued the University and various officials, claiming that its admissions policies violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, she challenged the affirmative action policy the University put into place following the Supreme Court’s rulings in Grutter and Gratz, which partially upheld similar admissions policies at the University of Michigan:

In Grutter, the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michi­gan’s undergraduate admissions program, which automat­ically awarded points to applicants from certain racial minorities.

Fisher, slip op. at 3-4.

Following Grutter and Gratz, the University of Texas undertook a study which “concluded that the University lacked a ‘critical mass’ of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.” Fisher, slip op. at 4. Consequently, the University began to include an applicant’s race in his or her “Personal Achievement Index” score, which is used, along with an “Academic Index” score, to determine admissions:

Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not.


After being denied admission in 2008, Abigail Fisher sued the University in the U.S.  District Court for the Western District of Texas. The District Court upheld the University’s affirmative action policy, and the U.S. Court of Appeals for the Fifth Circuit affirmed that decision. Fisher, slip op. at 5. The Supreme Court vacated the Fifth Circuit’s ruling, and sent the case back for further consideration in light of the Court’s opinion. Id., at 13.

To make sense of the Fisher ruling, it’s important to understand that while the Fourteenth Amendment provides that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws,” that does not mean that states and their political subdivisions are barred from making rules that take race into consideration in all circumstances. Rather, it means, as the Fisher Court explained, that whenever a state agency enacts rules based in part on race, those rules must withstand “strict scrutiny” — i.e., they must be narrowly tailored to meet a compelling government interest. In the context of a public university’s admissions process, Fisher, relying on Justice Powell’s opinion for the Court in Bakke, held that “[r]edressing past discrimination could not serve as a compelling interest” sufficient to uphold an affirmative action policy, but that “[t]he attainment of a diverse student body” might. Fisher, slip op. at 6. The Court explained:

In Grutter, the Court reaffirmed [Justice Powell’s] conclusion that obtaining the educational benefits of “student body diversity is a compelling state interest that can justify the use of race in uni­versity admissions.” [539 U. S.] at 325.

[But] this follows only if a clear precondition is met: The particular admis­sions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny … “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, 539 U. S., at 334, but instead must “remain flexible enough to 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,” (id., at 337). Strict scru­tiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Bakke, 438 U. S., at 305 (opinion of Powell, J.) (internal quotation marks omitted).

Id. at 7-8.

In other words, a public university seeking to employ a race-sensitive admissions policy must first demonstrate that it has a legitimate reason to do so (i.e., that its student body lacks diversity, and that the lack of diversity adversely affects its students); and then demonstrate that the method employed to remedy that problem is narrowly tailored to accomplish that goal.

As to the first part of that test, the Court said, “a university’s ‘educational judg­ment that such diversity is essential to its educational mission is one to which we defer’,” but a reviewing court nonetheless “should ensure that there is a reasoned, principled explanation for the academic deci­sion.” Fisher, slip op. at 9, quoting Grutter, supra, 539 U. S. at 328. As to the second part of the test — i.e., that the methods employed to reach the goal of student body diversity are narrowly tailored to that goal — the Court held that no such deference should be afforded the University, and therein lies the problem: The courts below had deferred to the University’s judgment as to both the need for diversity and the method used to accomplish it. Id. at 11.

This is where the matter gets really complicated. Under the Court’s “strict scrutiny” analysis, “it remains at all times the University’s obligation to demonstrate … that admissions processes ‘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.’” Fisher, slip op. at 10, quoting Grutter, supra, 539 U.S. at 337. Furthermore, it’s not enough to demonstrate that using race in the admission process would, on its own, enhance diversity. Instead, the University must demonstrate that it considered race-neutral methods of achieving diversity, but that those methods would be ineffective. “If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense,” the Court held, “then the university may not consider race.” Id. at 10 (citations and internal quotation marks omitted).

In any event, the Court remanded the case back to the Court of Appeals so that the “admissions process can be considered and judged under a correct analysis.” Fisher, slip op. at 13. The “correct analysis,” though is so convoluted it’s a wonder any university — or any court — can make sense of it. In practice, I suspect that judges who are inclined to uphold affirmative action will do so whenever a university can demonstrate that it’s ticked all the right boxes, while judges who are disinclined will always be able to find fault with a university’s justification for its affirmative action policy.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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  1. Devans00 June 27, 2013 at 1:01 pm

    It kills me when self entitled students challenge Affirmative Action under the assumption that an unworthy person of color got “their spot”. As if it’s a foregone conclusion they would have been accepted except for one of THEM.

    The admission board decides what mix of students to extend an offer to, not some teen who probably never had a big set back in their life.

  2. hedera June 27, 2013 at 3:43 pm

    Why do universities not simply admit publicly that the diversity issue is not simply a race issue, but is a class issue largely based on economic standing? That is to say, on income? Kids of color are in general much more likely to be poor than white kids; poorer white kids also have trouble getting into universities. Make your second category economic standing not race and provide plenty of financial help, and you avoid this whole mess. Except of course that there will always be someome convinced that they were bumped by some less deserving soul…

    • Devans00 June 27, 2013 at 11:04 pm

      I hear ya hedera. Just once, when one of these kids turn up complaining about being bumped, I’d like to see a university to issue a press release saying something like:

      Person X was not going to be admitted. The smug, self superior, piss poor attitude they demonstrate by filing an anti-affirmative action lawsuit is why they’ll never be eligible to attend our institution. Such actions are not compatible with our philosophy of diversity, mutual support and friendship.

      I can dream, right?

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