Those of you who have taken constitutional law will recall (and those who have not will soon learn) that Barbara Grutter was the white plaintiff who challenged the University of Michigan Law School’s use of race to favor minority applicants in the admissions process. The Supreme Court in 2003 upheld the Michigan affirmative action plan in Grutter v. Bollinger.
Abigail Fisher hopes to pick up where Grutter left off. Fisher is the named plaintiff in Fisher v. University of Texas at Austin whose petition asks the Court to either strike down the Texas school’s affirmative action admissions policy as inconsistent with the Grutter ruling, alternatively, to reconsider (and overrule) Grutter.
At the heart of both cases is the question of whether and to what extent the Fourteenth Amendment’s guarantee of “equal protection of the laws” permits race to be used as a factor in efforts to achieve greater diversity in higher education. For more than three decades, the Court has said that although race may be one of numerous factors taken into account, it cannot be the predominant consideration in an admissions process.
Universities watch the Court’s decisions on affirmative action like a weather vane. After the Court narrowly permitted the use of race in admissions by a splintered five-four decision in 1978 in Regents of the University of California v. Bakke, many schools modified their plans to look like Harvard University’s system, which the Court held up as a model.
In 2003, the Court upheld the Michigan Law School plan in Grutter but it sent mixed signals. On the same day, it struck down Michigan’s undergraduate admissions plan in Gratz v. Bollinger, ruling six to three that the use of race was too rigid and failed to provide individualized, case-by-case consideration. Many universities, including the University of Texas, again made adjustments to reflect the latest word from the Justices.
If the Court decides, probably in mid- to late November, to hear Fisher’s appeal, this process will repeat itself, and public universities throughout the country will have to again adjust their admissions plans to the Court’s latest guidance.
When the Court considers whether to hear the new case, one Justice who is not sitting at the conference table will be just as important as nine Justices who are. In 2006, Justice Sandra Day O’Connor – the author of the Court’s opinion in Grutter – retired and was succeeded by Justice Samuel Alito. While O’Connor could hardly be called a fan of the use of race for affirmative action, she believed it was necessary in some, limited circumstances, and could be a factor in efforts to achieve diversity in higher education. Alito, in contrast, seems to doubt the constitutionality of any use of race, ever, by the government in decision-making. Thus, the fragile coalition that narrowly upheld the affirmative action plan in Michigan is no longer on the Court, and constitutional change could well be in the offing.
Fisher, who is Caucasian, was a high school senior when she applied for admission to the University of Texas in 2008. She did not qualify for admission to the school under the principal program that it uses: the Top Ten Percent (TTP) plan, which offers admission to any Texas resident who graduates in the top ten percent of her high school class and – because race is not a specific factor taken into consideration for those seats – is regarded as a “race-neutral” plan. In 2008, students admitted under the TTP made up eighty-one percent of the freshman class.
Fisher was not awarded one of the remaining slots in the class either. She then filed a lawsuit challenging the policies used by the university to fill those slots. In the years leading up to the Court’s decision in Grutter, the University had relied on academic performance and a personal achievement measure that considers the quality of two essays and a list of factors like leadership, community service, work experience, and family status. However, after the Court’s decision in Grutter, the university added race to the personal achievement measures, making the admissions process for the remaining nineteen percent of the class a race-conscious plan. Fisher’s lawsuit alleges that this additional affirmative action plan violates the Fourteenth Amendment and injures her by excluding her and allowing others with weaker academic records to be admitted instead.
Texas officials argue that the plan is a constitutional valid means to achieve more diversity among African and Hispanic Americans than the Top Ten Percent plan provided. And in particular they studied enrollment in smaller classes and found a greater need to target diversity in specific schools, programs, and majors to achieve actual diversity in the classroom, rather than just generally in the student body.
Both a federal district court and the Fifth Circuit upheld the Texas plan, finding it consistent with the Supreme Court’s ruling in Grutter. Earlier this year, the full Fifth Circuit voted (nine to seven) not to rehear the case en banc – i.e., in front of all sixteen judges. But Chief Judge Edith Jones, joined by four colleagues, wrote a dissent, arguing that the three-judge panel that had upheld the plan had given too much deference to judgments made by the University of Texas.
In Grutter and elsewhere, the Supreme Court has said that when governments, including public universities, use race as a basis for decision-making, the courts should apply their most searching, skeptical review – known as “strict scrutiny”: the use of race should be upheld only if public officials can show both that they had a compelling justification for their policy and that the policy is narrowly tailored (that is, not too broad), to achieving the goal. Both the opinion by Chief Judge Jones and the appeal by Fisher maintain that the lower courts did not adequately question the need for the Texas plan and failed to factor in the fact that the Top Ten Percent plan was already achieving diversity in the University. The opinion by Judge Jones in particular seems geared to attract the attention of conservative Justices. She wrote, “In the end, this case may determine the admissions policies of institutions of higher learning throughout the Fifth Circuit, or beyond, for many years.”
Attracting the Court’s attention may not be a difficult task. In Grutter, Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas voted to strike down the Michigan Law School plan. Chief Justice John Roberts and Justice Alito were not yet on the Court, but both made clear in 2007 – in a case called Parents Involved in Community Schools v. Seattle School District No. 1 – that they view the use of race as the basis for any government decisions as deeply suspect under the Fourteenth Amendment. Indeed, in that case, the Chief Justice famously wrote, citing the Court’s landmark decision in Brown v. Board of Education, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Whether there will be four votes to hear the Fisher case, as the Court’s procedures require, is, of course, anybody’s guess. But there is unquestionably a strong contingent of the Court who view the decision in Grutter as erroneous and who view the use of race for affirmative action purposes as generally violative of the Constitution. Abigail Fisher’s appeal offers the opportunity, if those Justices choose to hear it, to at least fine tune and narrow the standards for using race in affirmative action in higher education admissions or even, perhaps, to overrule Grutter.
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