By James F. Blumstein
University Professor of Constitutional Law and Health Law and Policy
When it agreed to hear Fisher v. University of Texas at Austin, the Supreme Court signaled its willingness to re-engage the issue of racial preferences in the context of university admissions. The Court’s decision last June did not revisit the core doctrine of its earlier racial preference admissions cases, so in some quarters the outcome was seen as something of a nondecision. But the Court’s Fisher opinion codified and clarified important elements of prior doctrine, forging a 7-1 consensus around a set of understandings of prior caselaw. (Justice Elena Kagan did not participate in the case, presumably because of prior involvement in her role as Solicitor General).
Fisher involves the use of racial preferences in undergraduate admissions at the University of Texas at Austin. An earlier Court of Appeals decision, Hopwood v. Texas, had barred the use of racial preferences in university admissions in Texas. In response to Hopwood, Texas’ legislature had adopted a Top Ten Percent Plan that mandated automatic admission at any state university of high school seniors in the top ten percent of their class. The goal was to increase enrollment of “underrepresented minorities” at the University of Texas, and it succeeded. The percentage of enrolled black students increased from 2.7 to 4.5 percent from 1997 to 2004; the percentage of enrolled Hispanic students increased from 12.6 to 16.9 percent over the same period.
The Top Ten Percent Plan was a race-neutral, but race-motivated attempt to increase minority enrollment at the University of Texas. In Fisher, the Top Ten Percent Plan was not challenged; its existence and validity were assumed. Only the subsequently adopted racial preference program was at issue.
In 2003, the Supreme Court approved the use of racial preference in admissions at the University of Michigan Law School in Grutter v. Bollinger (2003), recognizing that student-body diversity was a compelling interest that could justify the use of race under strict scrutiny. In response, the University of Texas modeled and adopted a racial-preference-in-admissions program in the image of that University of Michigan Law School program. While the programs were similar, the context was quite different because of the Top Ten Percent Plan—the university started with a baseline of considerable diversity, whereas the University of Michigan Law School’s student body would not have been diverse without the racial preference program approved in Grutter.
The Supreme Court has repeatedly held that the use of race by governmental institutions triggers “strict scrutiny” under Equal Protection. Under the principle of racial reciprocity or consistency, the Court has stated that strict scrutiny—the Court’s most rigorous standard of review—applies to the governmental use of racial criteria, irrespective of which race is benefited or burdened.
Strict scrutiny has two components. It requires that any use of racial criteria serve not just legitimate but “compelling” interests; and it requires that racial criteria be used in implementation of that compelling interest only as a last resort if race-neutral alternatives cannot achieve the compelling interest. The Supreme Court in Grutter purported to apply strict scrutiny.
The hallmark of strict scrutiny is that courts do not defer to governmental judgments but rather put government to the obligation of justifying the use of racial criteria; the normal presumption of validity that attaches to governmental action is reversed, with the government shouldering the burden of justifying the use of race.
In the context of higher education, the Court in Grutter altered the traditional lack of deference in strict scrutiny cases, at least in the context of determining whether a compelling interest was being advanced; the Court relied on the First Amendment roots of academic freedom to defer to a state university’s decision that student-body diversity was critical to achievement of the university’s academic mission. In a subsequent decision, Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court declined to extend that deference to the K-12 context. In Fisher, the Court assumed that Grutter’s deference applied to the University of Texas’ determination that student-body diversity was an essential ingredient in achieving its academic mission—that it was a compelling interest.
Fisher considered whether the same deference should apply to the way in which the university implemented its broad educational objective. Significantly, Fisher held that, while deference is granted to a public university to set its academic mission or goal, no corresponding deference is appropriate at the implementation stage, where traditional “narrow tailoring” analysis that characterizes strict scrutiny applies. That is, a public university must “prove that the means chosen” to attain student body diversity “are narrowly tailored to that goal.” The “University receives no deference” on that issue.
The “compelling” interest recognized in Grutter is the race-neutral concept of “student-body diversity,” not “racial diversity.” Student-body diversity encompasses a broad array of qualifications and characteristics that may include race or ethnicity but is much more “complex” than “simple ethnic diversity.” The critical inquiry is the contribution of student-body diversity to the overall educational process and outcome of the public university. Fisher charges a court with carefully analyzing whether the educational benefits of student-body diversity can be attained through the use of race-neutral methods without the use of race. If comparable educational benefits of student-body diversity can be achieved through a nonracial approach, “then the university may not consider race.” As “student-body diversity” and the educational benefits that flow from it are broadly described in Grutter and its companion case, Gratz v. Bollinger, such diversity and the attendant educational benefits likely can be achieved, at least in many circumstances, without consideration of “racial diversity.”
Student-body diversity can include racial diversity but cannot be equated to it. Student-body diversity is valued for the educational benefits to all students that accrue when students come from diverse backgrounds and experiences. The educational benefit from many of these factors, such as overcoming specific hardships, experiencing discrimination, or having volunteer and work experiences, can attach even if racial diversity as such is not expressly considered.
“Student-body diversity can include racial diversity but cannot be equated to it. Student-body diversity is valued for the educational benefits to all students that accrue when students come from diverse backgrounds and experiences.”
Under Fisher, the University of Texas must demonstrate that, in the face of substantial “student body diversity” already at the university, it is necessary to use overt racial criteria to achieve “racial diversity” to achieve the educational benefits of “student body diversity.” The Supreme Court remanded this issue for further development and analysis, but this will be a hard showing for a public university in the position of the University of Texas to make.
Fisher calls into question the assumption that the use of racial criteria or the achievement of racial diversity is necessarily required to achieve student body diversity. Although the Court in Fisher did not allude to other lines of authority to support its stance, there are analogous cases that buttress the Court’s approach, including jury selection and racial gerrymander cases. Those cases also call into question whether, as I have observed elsewhere, “race is or properly can be correlated with, or used as a proxy for, such things as political viewpoint (voting cases) or the effects of experience in evaluating evidence (jury selection).”
In the jury selection context, race-based peremptory challenges rely on judgments that race is a proxy for juror attitudes, experience, competence or bias. The premise is that a member of a racial minority may have special or distinctive experiences that would shape perceptions about behavior or evidence. But, as the Court has noted, such “gross generalizations” based on race are impermissible in the jury selection process, insufficient to satisfy strict means-ends scrutiny, even though there may be a “shred of truth” in some such generalizations. Race is not and cannot be used as a proxy for a juror’s attitudes, bias, (im)partiality or competence. As the Supreme Court has stated, modes of investigating impartiality other than race must be “explored in a rational way that consists with respect for the dignity of persons, without the use of classifications based on ancestry or skin color.”
Without invoking the jury selection cases, the Supreme Court in Fisher seemed to be adopting the same analytical approach. It is possible that racial diversity may not be a necessary component of student body diversity, and it is the burden of the university to demonstrate, without deference and under strict-scrutiny analysis, why the educational objectives of student body diversity cannot be achieved at the University of Texas, especially in the presence of substantial racial and ethnic diversity that arises from the Top Ten Percent Plan, without the use of race as a proxy for background, experience and attitudes.