Andrew M. Grossman practices appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP, and Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, where Mr. Grossman is an adjunct scholar. They filed amicus briefs at both the certiorari and merits stages in this latest iteration of Fisher v. University of Texas at Austin.
Since the Supreme Court agreed to revisit the constitutionality of the University of Texas’s use of racial preferences, supporters of affirmative action have been publicly consoling themselves that the resulting decision will be a narrow one. Abigail Fisher, after all, doesn’t ask the Court to overturn its endorsement, in Grutter v. Bollinger (2003), of diversity as a government interest sufficient to justify race-based decisionmaking. And UT is unique in guaranteeing admission to the top ten percent of graduates of every high school in Texas and thereby arriving at a diverse student body irrespective of any racial machinations. No matter what the Court does, they say, the post-Grutter consensus of “Don’t Tell, Don’t Ask” — that is, courts won’t intervene so long as universities keep the details of their race-based programs in the shadows — will endure.
This is blinkered. We know from Joan Biskupic’s reporting that a five-Justice majority was prepared in 2013 to “strike down the UT program and restrict affirmation action nationwide” and apparently changed course to placate Justice Sonia Sotomayor and forestall a particularly vicious dissent. That didn’t work — Sotomayor repurposed her work into an ill-fitting dissent in Schuette v. Coalition to Defend Affirmative Action (2014) — the Fifth Circuit didn’t get the message, admissions offices haven’t changed their practices, and now here we are again.
Texas’s Top Ten Percent law may be unique, but the way that UT uses race isn’t. Like basically every other college that awards racial preferences, it does so through “holistic review.” While about eighty percent of students come in through automatic admission, the rest are channeled through that process. In holistic review, readers assign each applicant a “personal achievement score” from 1 to 6 based on such factors as demonstrated leadership qualities, extracurricular activities, honors and awards, work experience, and community service. And, since 2004, race.
UT says that it’s trying to achieve “qualitative” diversity — what it calls “diversity within diversity” — within a “critical mass” of underrepresented minorities on campus. Given that the standard here is strict scrutiny, it’s important to ask how exactly university officials have tailored their consideration of race to achieve that scientific-sounding (yet still largely nebulous) goal.
The answer is that they haven’t. To be sure, UT’s admissions officials believe that race “is an important credential to be considered” and therefore ensure that application readers are “certainly aware of the applicant’s race” by requiring that it be reported “on the front page of the application.” But the university doesn’t train its application readers on how specifically to make use of race in evaluating applications. That’s a notable omission, because the school claims not to use race as a “plus” factor in favor of applicants from minority groups that it believes are underrepresented on campus. Instead, its officials testified that race can potentially benefit any applicant, regardless of race, at the reader’s discretion. Nor is there a particular weight given to race when it is used as a “plus” factor; that too is left to the reader’s discretion. And despite using race in this open-ended way, the university doesn’t provide a second review to ensure consistency in application readers’ use of race — as it does with the grading of application essays.
This is why, when the district court sought to find some explanation as to how UT actually uses race — not what it says it does in general terms, but what its application readers specifically look for and do when they review files — the only evidence it could muster was that the school values a “sense of cultural awareness.” That distinctive phrase — “cultural awareness” — appears a dozen times in the testimony of the university’s admissions consultant, as well as repeatedly in the testimony of its associate director of admissions. But neither was willing to explain exactly what this means or how it works — that is, who gets a benefit and how much?
How all this contributes to “qualitative” diversity on UT’s campus is anyone’s guess. Literally: the University of Texas has no idea whether its use of race actually furthers its stated purpose.
Indeed, the university says it has no measurement of — and no way of finding out — how many students have been admitted due to its consideration of race or who these students might be. Its director of admissions testified that consideration of race couldn’t be dispositive as to any particular applicant and that he couldn’t identify any applicant admitted based on race.
Believe it or not, none of this is unusual. Many schools viewed Grutter as a blanket endorsement of holistic review, no matter the particulars of strict scrutiny. For them, the opacity of holistic review is a virtue, because it allows administrators to engage in what is effectively racial balancing — a practice that the Supreme Court invalidated in Grutter’s companion case, Gratz v. Bollinger — without having to admit as much.
This is nothing new. Decades ago, under the guise of promoting a “diverse student body,” Harvard College used holistic review as a means to reduce the number of Jewish students. In the 1960s, it used the same technique to boost enrollment of minorities. As Alan Dershowitz has recounted, to avoid scrutiny and controversy, Harvard was “circumspect about the methods it used to target them or the quantitative factors at work,” instead using the language of diversity and holistic review. As a practical matter, however, Harvard was “significantly lowering its traditional academic standards for many minority applicants,” making race the defining feature in their admissions.
Evidence suggests that Harvard’s holistic review program continues to facilitate forbidden racial quotas, now against Asians. Going by the numbers regarding academic achievement — which is still the dominant factor in admissions — Asian Americans admitted to Harvard are underrepresented by a factor of half or even two-thirds relative to the number of applications from Asian Americans that Harvard receives. And it’s not just Harvard: the same pattern is evident at other elite universities.
None of this has been lost on the Court. Justice Anthony Kennedy, in particular, has been attentive to the ways that programs which focus on individualized review, but without the safeguard of searching judicial review to ensure narrow tailoring, can be abused.
And it’s difficult to see how a holistic review program can possibly withstand strict scrutiny. For one, a university defending racial preferences “must establish, in detail, how decisions based on an individual student’s race are made,” including “how and when” it uses race. But its own evidence shows that its holistic review program is structured to avoid any precise “how” or “when,” giving free rein to application readers.
Second, whether or not UT can demonstrate the necessity of racial classifications, it has failed to show that the race-based means it has chosen “fit” its diversity goal. To the contrary, its use of race is completely divorced from its stated goal of achieving “qualitative” diversity. This is true as to the particulars of the program itself, which uses race in an ad hoc fashion rather than tying it concretely to the university’s stated goal. And it’s true of the choice to design a program that is incapable of monitoring, evaluation, or even identifying afterwards which applicants were benefited by, or admitted due to, race. The university has no way to know whether its holistic review is advancing its diversity goal or not; no way to make required adjustments that would improve the program’s fit; and no way to demonstrate that it’s applying racial preferences no larger than necessary or that the contours of its program are less restrictive and less burdensome than other possible designs — all of which it must do to satisfy the exacting judicial review that the seven-to-one Court called for in (what will now be called) Fisher I.
Third, although UT’s holistic review program might appear, despite any other flaws, to at least provide for individualized consideration of applicants, the record doesn’t actually support that point. Due to the black-box nature of the admissions process, the university can’t show that its reviewers do not treat race as “the defining feature” of applications. In other words, there’s no way to ascertain whether it amounts to a thumb or a brick on the scale in calculating any given applicant’s personal achievement score.
In the end, we doubt that there’s any way to conduct holistic review that’s consistent with strict scrutiny. Directing application readers to consider a pile of factors, including race, and then assign a single “holistic” score is not a reasonable and tailored way to advance any lawful diversity interest. And even if it were, that process’s opacity precludes a university from meeting its evidentiary burdens in demonstrating the necessity and fit of racial preferences. These shortcomings are inherent to holistic review: subterfuge is the point, as is the lack of accountability that it enables.
We see no reason why the Court would focus on the relatively narrow issue that occupied the Fifth Circuit — the necessity of racial classifications in the context of Texas’s Top Ten Percent law — when it has the opportunity to consider the more important issue of holistic review’s constitutional viability. That issue has attracted the Court’s attention in the past and seems to be the conservative majority’s foremost ground of disagreement with the Grutter majority’s application of narrow tailoring. Perhaps more importantly, if Kennedy is serious about enforcing strict scrutiny as the “essential safeguard Justice Powell insisted upon as the precondition of the approval” of affirmative action programs, taking aim at holistic review is exactly the way to do it.
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