Diversity in Higher Education
Is Affirmative Action Nearing Its End?

On October 10 the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, the first higher education affirmative action case before the Court since 2003’s Grutter v. Bollinger, which upheld a law school’s
race–conscious admissions policy.

Pundits and the media weighed in the day after oral arguments in Fisher, with some predicting the end of affirmative action and the watering down or dissolution of Grutter due to a conservative Court. Regardless of its outcome, which is expected early next summer, Fisher now sits alongside cases such as Grutter and Regents of the University of California v. Bakke as evidence of jurists’ divided attitudes, a reflection of the country’s own uneasy
relationship with race.

A Changed Court
Writing for the Court’s majority in Grutter, Justice Sandra Day O’Connor famously opined: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Yet, less than a decade later, the future of affirmative action is once again being determined by the justices. During oral arguments in Fisher, Justice Stephen Breyer wryly noted the time discrepancy, remarking, “Grutter said it would be good law for at least 25 years. And I know that time flies, but I think only nine of those years have passed.”

Many have pointed to the conservative nature of today’s Supreme Court as the primary reason cert was granted to Fisher. Justice Elena Kagan, who was solicitor general at the time the U.S. Department of Justice filed a brief in support of the University of Texas at Austin (UT) when the case went before the U.S. Court of Appeals for the Fifth Circuit, has recused herself from Fisher. Without Kagan, the Court could split 4–4, in which case the Fifth Circuit’s decision will stand.

“The makeup of the Supreme Court has changed since 2003 and grown more conservative. Justice [Anthony] Kennedy, who was a dissenter in the Grutter case, is now the swing view on the Court. Kennedy wrote quite a strong opinion in Grutter saying that the Court had gotten this issue wrong,” says Richard Kahlenberg, a senior fellow at the nonpartisan think tank The Century Foundation who has written extensively about education, including affirmative action. “With the majority of the justices now conservative, it would have been very surprising to me if they did not take the Fisher case.”

Having written many cert petitions during his four–decade–long career, Bert Rein, cofounder of Wiley Rein LLP, thought the odds of the Supreme Court granting cert in Fisher were not great, yet he thought the case was different, especially after the Fifth Circuit split and refused to rehear a three-judge panel’s earlier decision in favor of UT.

“Chief Judge Edith Jones wrote a fairly rigorous dissent for denial of rehearing and Judge [Emilio] Garza, the only minority on the panel, wrote in his opinion that he was forced to go along with the court majority that upheld the Texas system because he thought Grutter has enough in it to warrant that opinion, but that he thought it was unconstitutional and was waiting for the day when the Supreme Court could turn the decision around,” Rein says. “I think this was a factor [in the decision to grant cert]; it wasn’t just us, there were also judges saying that this was something that needed to be looked at further.” 

Roger Clegg, president and general counsel of the anti-affirmative action Center for Equal Opportunity, says the Court’s decision to hear Fisher is partly due changes in the country’s social landscape since 2003.

“There have been legal decisions made, like in the Parents Involved in Community Schools v. Seattle School District No. 1 case, that show what the Court is thinking in this area. The social science evidence that the Court relied on in the Grutter decision has been revisited, and the country’s demographics has changed, too,” he says.

Parents Involved was a combination of two cases involving voluntary school integration plans in Louisville, Kentucky, and Seattle, Washington, that were both upheld by the lower courts. The Court did away with the integration plans, and in his decision Chief Justice John Roberts declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

While the case had no bearing on the Court’s affirmative action precedents, it perhaps provides a glimpse of the justices’ views on racial matters. Several justices have written about their dislike of affirmative action.

Race as ‘Plus’ Factor
At issue in Fisher is whether UT violated the Equal Protection Clause of the Fourteenth Amendment when it denied admission to Abigail Fisher, a white applicant, into its 2008 class. UT already had a race–neutral admissions policy in place when the university decided to add race as a “plus” factor in its admissions process. Under Texas’ Top Ten Percent Plan, students who graduate in the top 10 percent of a public high school are guaranteed admission to state–funded universities such as UT.

Under Grutter, a school can narrowly tailor its admissions process to promote its compelling interest of achieving class diversity if it made a good-faith effort to use race–neutral alternatives and did not use quotas to reach a critical mass of underrepresented minorities. UT claims that even with its use of both the state’s 10 percent plan and race as a plus factor, the university still does not have a critical mass of African American and Hispanic students. UT also maintains that its use of race as a plus factor is narrowly tailored and meets the requirements in Grutter.

Opponents argue that while the university may have a compelling interest in having a diverse student body, that interest was already being met by the 10 percent plan.

“I think the additional use of race at the University of Texas was unnecessary because when they took race out of the equation, they actually had higher levels of racial and ethnic diversity than in the days when they used race in admissions. The 10 percent plan was working pretty well to promote racial diversity and socioeconomic diversity, which in my mind is as important as racial diversity. Most schools now have rich kids of all colors, which is better than just rich white kids, but it’s not genuine diversity,” Kahlenberg says.

Another person who believes that the additional use of race for admission at UT was unnecessary and, indeed, discriminatory is Edward Blum of the Project on Fair Representation, a legal defense fund focused on eliminating race–based laws and opposed to any racial preferences. Blum is the man who brought Fisher to the attention of Rein, whose firm had worked with Blum before on the Supreme Court case Bush v. Vera,in which Blum was one of several Texas voters who sued the state over its redistricting plan.

Going Back to Grutter
Grutter was one of two cases involving affirmative action and the University of Michigan that the Supreme Court took up in 2003. The case’s plaintiff, Barbara Grutter, had an experience not unlike that of Abigail Fisher: she was denied admission to the University of Michigan Law School.

Grutter filed suit alleging that she was discriminated against because she was white and that the school gave special consideration to certain racial minorities in its admissions. In a 5–4 decision the Court ruled that the school did not violate the Fourteenth Amendment because it had a compelling interest in promoting class diversity, there were no quotas, and the school was using a holistic admissions process where race or ethnicity was just one of several factors it took under consideration when looking at an applicant.

The second case, Gratz v. Bollinger, had a different outcome. Jennifer Gratz and Patrick Hamacher, both white residents of Michigan, were denied entry to the University of Michigan’s undergraduate program and filed a lawsuit through the Center for Individual Rights declaring violations of the Fourteenth Amendment. The Court ruled that the school’s undergraduate admissions policy did violate the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 because it employed a point system that gave an automatic point increase to certain minority groups instead of considering applicants on an individual basis. After Gratz, universities could no longer guarantee seats or points for underrepresented minority applicants.

Gratz and Grutter defined the boundaries for permissible use of affirmative action, and universities were left searching for lawful ways to create a diverse student body.

Some states already have banned the use of affirmative action in higher education. In 1996 California voters approved Proposition 209 banning the use of affirmative action in public education, employment, and contracting in the state. Michigan passed a similar law in 2006, just three years after Grutter and Gratz. Other states that have similar bans include Arizona, Nebraska, Oklahoma, and Washington.

Also in 1996, in Hopwood v. Texas, the Fifth Circuit banned the use of affirmative action programs in Louisiana, Mississippi, and Texas. As a result of that decision, Texas instituted the 10 percent plan. By utilizing the segregated nature of Texas’ public high schools, universities are able to increase diversity without specifically singling out race.

However, it was the 1978 Regents of the University of California v. Bakke landmark case that laid the groundwork for what affirmative action policies were acceptable. The Court ruled, 5–4, against the University of California Davis School of Medicine, whose admissions process involved setting aside a number of seats in the entering class for minority applicants.

Justice Lewis Powell Jr., who wrote the decision, concluded that while quotas were not allowed, schools could use affirmative action if it could be established that diversity was a compelling interest that meets the strict scrutiny test, and if the institution in question pursues diversity through the holistic evaluation of each applicant.

Seeking Diversity at UT
Up to 75 percent of an incoming class at UT is determined by the 10 percent plan, but after those slots are filled, race becomes one of many factors in its admissions process.

UT started to use race as a plus factor in the wake of Grutter and after it reexamined its admissions policies and the level of racial diversity at the school. The reexamination process in 2002 involved reviewing admissions data, surveying students, and holding conversations with administrators, faculty, constitutional law experts, and others on student body diversity at UT. The school’s findings showed that nearly 90 percent of classes with 10 to 24 students had zero or one African American enrolled, while more than 70 percent of classes with 25 to 49 students had zero or only one African American student.

This examination of the makeup of individual classes at UT was seized upon by the justices during oral arguments in Fisher. Justice Antonin Scalia and Chief Justice Roberts made several attempts to understand how UT got the figures it did. When UT attorney Gregory Garre directed Scalia to the appendix part of the study, Scalia replied: “Yes. It doesn’t explain to me how they go about, classroom by classroom, deciding how many minorities there are.”

Outside of the 10 percent plan, UT also implemented race–neutral alternatives following the Hopwood decision. It established three new regional recruitment centers in areas with historically low numbers of UT students and created scholarship programs to recruit students from lower socioeconomic backgrounds and those who would be the first in their family to attend college.

“One of the constitutional requirements is that you have got to try race–neutral alternatives in good faith. Here UT tried for seven years, and the U.S. District Court for the Western District of Texas, Austin Division, said that anyone who suggests that they didn’t engage in good–faith efforts just doesn’t know the record of this case,” Garre says.

Race became a plus factor in UT admissions in 2005 for applicants who were not accepted under the 10 percent plan. Non–top–10–percent applicants are admitted through a matrix system involving an Academic Index (AI) and a Personal Achievement Index (PAI). The AI is based on an applicant’s high school class rank, standardized test scores, and high school curriculum, while the PAI is based on two essays and a Personal Achievement Score (PAS), which looks at factors such as leadership qualities, extracurricular activities, and honors or awards. The PAS also includes “special circumstances,” such as language spoken at home, socioeconomic status, and race.

“The whole point of the percentage plan was to address the scaling back of diversity after the Hopwood case and to get additional minorities to take advantage of the [de facto] segregation in the Texas public school system where you have some schools in predominantly minority areas that are going to have a lot of minorities graduating. But in this case, the petitioner does not challenge the top 10 percent plan; she’s challenging the holistic review that operates in connection with that, and we think complements the 10 percent plan and counteracts the shortcomings of the percentage plan,” Garre says.

“Beyond that, the 10 percent plan generates racial diversity by virtue of the segregation of the public schools, but it’s not about generating diversity in a broad sense on campus, which is the whole point of holistic review, which is to look at a candidate in all of his or her respects, including race as one factor but not an exclusive factor. What it’s doing is not only admitting additional minority students, but admitting a class that is much more broadly diverse, not only among different racial groups but within the same racial groups.”

However, Garre’s remarks during oral arguments about UT wanting diverse minorities were met with skepticism by some of the justices. Justice Samuel Alito asked Garre whether an African American or a Hispanic applicant with parents who are both lawyers would “deserve a leg up against . . . an Asian or a white applicant whose parents are absolutely average in terms of education and income.” When Garre said no, Justice Kennedy asked: “So what you’re saying is that what counts is race above all? ...What is the logical end point? When will I know that you’ve reached a critical mass?”

Figures related to critical mass remained allusive during oral arguments, despite the justices’ attempts to nail down when UT would know it had reached a critical mass of underserved minorities.

Fisher’s legal team argues that between UT’s use of the 10 percent plan and race as a plus factor, the university already has reached a significant number of minority students.

“This raises the issue of how does a university know that the results produced from the top 10 [percent] system and the preexisting personal achievement system [aren’t] sufficient? Is it critical mass or isn’t it? And as Judge Jones of the Fifth Circuit said, How can you say you don’t have critical mass? What isn’t being done?” Rein says. “Of course, there’s no magic formula, or at least [Justice O’Connor] didn’t say what one was. For Texas, critical mass has to do with the demographics [in the high school graduating classes], and the district court thought this was reasonable. Our side didn’t think that this was acceptable under Grutter, but it could be read that way. That’s one of the problems with that decision.”

Chief Justice Roberts also appeared to take issue with UT’s gauge, or lack thereof, of critical mass. “What is the critical mass of African Americans and Hispanics at the university that you are working toward?” he asked. Garre said the university didn’t have a number to give him.

“I understand my job, under our precedents, to determine if your use of race is narrowly tailored to a compelling interest. The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?” Roberts asked. “Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?”

Necessity of Diversity
Affirmative action is a divisive issue not only for the Supreme Court, but for the American public as well. There are its defenders, such as Shirley Wilcher, executive director of the American Association for Affirmative Action, which wrote an amicus brief in support of UT. Wilcher believes in the importance of having a racially diverse student body.

“There are benefits that flow from diversity; there’s the sharing and exchange of ideas, which promotes the growth of all students. You don’t want future teachers or doctors, for example, graduating from college without any knowledge of the different cultures or perspectives of those that they are going to teach or see as patients. There’s a benefit to all students,” Wilcher says. “In my view, the rise of the middle class in the past 40 years is due in part to affirmative action laws and policies; maybe some of us wouldn’t be here today if not for the opportunities that we gained because of the outreach efforts of some colleges and universities.”

Wilcher also points to America’s changing demographics, with a growing number of non–whites being born in the country, as reason why affirmative action must continue. “Things are changing and we can’t allow this population to be left behind when we’re talking about the nation’s future leaders. It would be to our collective disadvantage if we ignore these realities,” she says.

Then there are detractors like Clegg, who thinks that the studies and statements touting the benefits of diversity are without merit. “The only rationale that the courts have recognized and that universities are using to justify racial discrimination is the argument that there are compelling benefits from diversity. The social science evidence behind this thin reed is becoming weaker and weaker. . . . The benefits of preferences are less than have been touted and maybe nonexistent, the costs are huge, and it’s unnecessary,” he says.

Although Clegg and Wilcher agree on America’s changing demographics, Clegg sees it as a reason to end affirmative action. “I think that in a country that is increasingly multiethnic and multiracial, it becomes more and more untenable to have our government institutions, particularly public institutions like universities, discriminating among Americans on the basis of skin color and what country people’s ancestors came from,” he says.

There is also Kahlenberg, who is a proponent of socioeconomic affirmative action. “Universities are concerned about racial diversity, but for whatever reason they’re not concerned about economic diversity, so what they do is they want to take the highest scoring whites, blacks, Latinos, and others, but given the unfairness of the K–12 educational system, the highest scorers tend to be the most affluent. At the selective institutions, 86 percent of the African American students are middle class or upper middle class. If you don’t pay attention to class and instead pay attention to race, what you’re going to get is a racially diverse student class that is overwhelmingly middle, upper middle class and wealthy,” he says.

But Wilcher says one cannot separate identity from race. “It’s never simply about skin color, it’s also about culture and experience. Our African American experience is different, including our experience in terms of discrimination,” she says.

Garre says that UT did try to use socioeconomic–based admissions in the years after Hopwood, but the diversity among incoming classes remained stagnant and even worsened for African Americans.

“This is something that is written about in a number of amicus briefs that point out that while socioeconomic status is certainly something we consider in holistic review, [it’s] not a substitute for considering race as one factor in holistic review,” he says.

Amicus Briefs
More than 70 amicus briefs have been filed in support of UT in the Fisher case, including those from the Army, Navy, Air Force, and Marines; the U.S. government; and numerous nonprofit, educational, and religious organizations.

California Attorney General Kamala Harris wrote a brief on behalf of her state urging the Court to rule in favor of the university. “In the wake of Proposition 209, and without regard to this Court’s important ruling in Grutter v. Bollinger, . . . which is largely irrelevant in California, this State’s public institutions of higher education have endeavored to achieve a suitable level of student body diversity without reliance on race–conscious admissions standards. They have not been successful in achieving a level of diversity that will adequately educate and prepare students for social and civic life following graduation. If California, with the broad diversity in its population, cannot achieve a suitable level of diversity at its universities, other states, with more homogenous overall populations, will face even greater challenges,” she wrote.

An amicus brief filed by 37 former senior military leaders in support of UT said the Supreme Court’s decision could affect diversity in the military officer corps and argued that a racially and ethnically diverse officer corps is “a mission–critical national security interest.”

“Based on decades of experience, the modern United States military regards a highly qualified and racially and ethnically diverse officer corps as vital to military effectiveness,” the group said. “As was the case when Grutter was decided, these race–conscious policies are vital to increasing and maintaining the pool of highly qualified minority military officers. And as was true when Grutter was decided, there are at present no race–neutral means for the military to fulfill its critical need for a highly qualified and diverse officer corps.”

On the U.S. government brief, Solicitor General Donald Verrilli Jr. (who spoke during oral arguments on behalf of UT) was joined by U.S. Department of Defense general counsel Jeh Charles Johnson, along with counterparts from the education, health and human services, commerce, and labor departments.

“The educational benefits of diversity identified in Grutter are of critical importance to the United States,” reads the brief. “The government, moreover, has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service–academy graduates of all backgrounds who possess the understanding of diversity that is necessary to govern and defend the United States.”

The brief goes on to say that UT’s admissions policy is constitutional under Grutter,and that part of the school’s mission is to “train students to become the next generation of Texas leaders by exposing them to the many diverse perspectives and cross-racial interactions they will that encounter in civic life.”

Among the 17 briefs filed in support of Fisher were those from The Cato Institute, the nonprofit public interest law firm Center for Individual Rights, and the Asian American Legal Foundation (AALF) and the Judicial Education Project.

While African Americans and Hispanics are the minorities most talked about in relation to the Fisher case, this latest consideration of affirmative action has reignited a debate on whether race–conscious admissions will wind up hurting Asian Americans.

The 80–20 National Asian American Education Foundation also filed a brief supporting Fisher. The group cited a study published in a 2009 book by Princeton University sociologist Thomas Espenshade who stated that “To receive equal consideration by elite colleges, Asian Americans must outperform Whites by 140 points, Hispanics by 280 points, Blacks by 450 points in SAT (Total 1600).”

The AALF’s brief claims that “In the name of racial diversity, racial preferences in college admissions programs in general, and at the University of Texas at Austin (‘UT’) in particular, discriminate against Asian–American applicants by deeming them overrepresented relative to their demographics in the population and thus less worthy of admission than applicants of underrepresented races.”

However, numerous Asian American groups have filed briefs supporting UT, saying that race–conscious admissions policies benefits Asian Americans from disadvantaged backgrounds.

“Asian American enrollment at UT has increased in the wake of the implementation of [race as a plus factor]. In the application process, any applicant’s race can be a plus factor in admissions in that contextualized way, so I think it’s very wrong to say that [Asian Americans] are penalized,” Garre says.

First or Last Resort?
Grutter may have been the case that dealt with a law school, but the law school community has rallied behind UT in the Fisher case, worried about what a ruling in favor of Fisher could mean for law schools and the legal profession.

The Association of American Law Schools (AALS) filed a brief in support of UT, arguing that although Fisher may concern undergraduate admissions, its outcome could affect law schools by shaping the composition of their applicant pool and constraining how they admit applicants.

“Given the role law schools play in training our national, state and local leaders, a requirement that institutions of higher education use nominally race-neutral application procedures would undermine the ability of law schools to build racially diverse classes and hamstring the ability of law schools to ‘cultivate a set of leaders with legitimacy in the eyes of the citizenry,’” the association said, citing Grutter.

In addition to the AALS, the Society of American Law Professors, the Law School Admission Council, the American Bar Association (ABA), the Brennan Center for Justice at New York University School of Law, Howard University School of Law’s Civil Rights Clinic, the National Black Law Students Association, the Society of American Law Teachers, and the Emory Latin American Law Students Association and Emory OUTLaw all have filed briefs in support of UT.

“Diversity in the legal profession is a compelling state interest, and race–conscious admissions policies are essential to increasing minority representation in the legal profession. Simply put, without the promotion of diversity in undergraduate colleges and universities, it would be impossible to achieve advancements in diversity in the profession,” the ABA said in its brief.

Martha Minow and Robert Post, deans of Harvard Law School and Yale Law School, respectively, filed a joint amicus brief and coauthored a Washington Post op–ed in October. The deans wrote that it would be a tragedy for legal education and higher education if the Court were to require universities to disregard individualized considerations of race in admissions.

“The holistic evaluation of applicants not only allows us to select the best possible candidates, it also enables us to assemble the best possible entering class. Our mission is to identify the entering class that will produce the best educational experience for our students. We need to select a class in which students have different perspectives, diverse aspirations and complementary strengths. Law students learn not only from faculty and books but also from each other. No one who has graduated from a law school can seriously doubt that the hours of peer debate among students and within study groups contribute at least as much to students’ education as does time in class. Race is sometimes an important and relevant factor in group discussions both inside and outside of the classroom,” Minow and Post said in their editorial piece.

While Harvard and Yale and many other institutions of higher education are hoping that affirmative action will remain largely untouched, that seems unlikely judging by the conservative makeup of the Court and the contentiousness of the oral arguments in October that showed the justices divided along predictable lines. In the past, Justice Kennedy has been hesitant to totally reject affirmative action, but during oral arguments he was seemingly wary of UT’s position.

Much of the analysis on Fisher the day after arguments were heard was that Grutter wouldlikely to become a shadow of its former self and that the Court’s decision would probably signal the end of affirmative action.

Weighing in before oral arguments, Kahlenberg said it is unlikely that the Court would completely affirm or overturn Grutter. Rather, he thinks that the justices would toughen the requirements in Grutter and make it more difficult to use race in admissions.

“I don’t think we’ll get a definitive decision from the Supreme Court. I think the Court is likely to say that universities shouldn’t use race as a first resort, which is what many do now, without looking at alternative plans that create racial diversity indirectly, but the Court may still keep the door open for using race as a last resort. I think the decision will be more restrictive than Grutter and suggest that schools have to try alternatives first,” he said.

Justice Sonia Sotomayor indicated as much when she said to Rein, “So you don’t want to overrule Grutter, you just want to gut it.” To which Rein replied, “I don’t want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in in your use of race. That is unacceptable. That is the invasion of Abigail Fisher’s rights to equal protection under the law.”

Reach D.C. Bar staff writer Kathryn Alfisi at kalfisi@dcbar.org.