Today’s big case was Fisher v. University of Texas. It’s the affirmative action case. The case was decided 7-1 with Anthony Kennedy delivering the opinion of the Court’s majority in a blander fashion than I’m used to. The case is remarkable more for what it did not do than what it did: race-conscious affirmative action programs are still apparently consistent with the Fourteenth Amendment, at least potentially, and no further guidance on what can or cannot be a part of race-conscious affirmative action programs has been offered.
Elena Kagan did not participate in the case; she had, I presume, been involved with the case in some fashion during her tenure as Solicitor General. The sole dissenter was Justice Ruth Bader Ginsburg, and there were separate concurrences by Justices Scalia and Thomas.
And my more liberal Readers will surely be irritated with me: I find myself agreeing most with Clarence Thomas’ concurrence.
The PAI and Race
UT Austin is the flagship of the University of Texas and one of the most prestigious universities in the country, whether public or private.
Abigail Fisher, an American citizen who self-identifies as Caucasian, applied for admission to UT Austin in 2008. Hers was one of 29,501 applications, of which 12,843 (43.5%) were admitted, not including Ms. Fisher, and of those offered admission, 6,715 actually enrolled.
The admissions system under which Ms. Fisher’s application was considered is a two-dimensional analysis. On one axis is the student’s academic performance – basically high school grades multiplied by SAT scores. On the other axis is the student’s “personal achievement index,” abbreviated PAI. Variants of the PAI as an admissions factor date back through two previous generations of affirmative action litigation challenging UT’s admissions policies. Colleges within UT Austin (e.g, Engineering, Liberal Arts) consider admissions applications separately.
The PAI purports to measure “leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s background [such as] growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities … and the general socioeconomic condition of the student’s family.”
Also in play was a 2009 Texas law that grants automatic admission at any public state college to all students in the top 10% of their high school class. Implementation of the revised PAI described above and the top ten percent law raised African-American enrollment at UT Austin from 4.1% to 4.5% and Hispanic enrollment from 14.5% to 16.9%.
In the wake of a relatively recent Supreme Court decision called Grutter v. Bollinger (2003) 539 U.S. 306 which indicated that race could, itself, be one of many factors considered by UT, UT began again considering race as an explicit factor in the PAI. While it is not assigned a specific numeric factor, all parties agreed that race is a meaningful part of the PAI. The explicit goal of considering race is to create a more diverse student body. Ms. Fisher’s application in 2008 was considered in this regime. She was not admitted, and filed suit challenging the inclusion of race as a meaningful factor of the PAI.
Justice Kennedy’s opinion goes on for several pages about how race-conscious admissions regimes are examined under a standard called “strict scrutiny.” In law school, I was taught that application of this standard was pretty much a death knell for a governmental policy, that it was only theoretically possible for a governmental activity to survive the analysis. In practice, some governmental activity actually does pass this analysis.
Under this test, the plaintiff’s only burden is to demonstrate that a constitutional interest is implicated by the governmental activity. The strict scrutiny test places the burden on the government to offer a compelling reason for the governmental activity, and to demonstrate that the activity is narrowly-tailored to achieve that compelling objective with only minimal intrusion on the interest raised by the plaintiff.
So all Ms. Fisher had to do is indicate that there is a reasonable question that UT’s admissions policy affects the interest of racial equality. Which everyone agrees, it does. Race is explicitly considered in the new PAI as a meaningful factor. From there, the burden is on Texas to show that its consideration of race within the PAI is both aimed at achieving a compelling governmental interest and narrowly-tailored towards achieving that goal.
Fortunately for Texas, cases going back to Regents of the University of California v. Bakke (1978) 438 U.S. 265 have indicated that diversity within the student body is indeed a compelling state interest. This has been the law for a long time, and I can see the argument: making things like enrollment in public universities is inherently a part of the concept of equal protection of the laws (which is a compelling interest, no doubt), and having a diverse student body makes that right a meaningful one because only a diverse student body will be truly accepting of anyone who shows up to enroll.
So the question becomes whether the formulation of the PAI is narrowly-tailored to achieve the compelling interest of diversity in the student body. And that’s where the majority found a problem: the Fifth Circuit applied a less searching standard, resting upon the uncontested good faith of the UT faculty and administration in re-introducing race as a non-quantified but important factor into the PAI. Justice Kennedy’s majority opinion did not find one way or the other whether this would be permissible; it simply announced that under existing law, the proper level of scrutiny to apply would be strict scrutiny.
A Majority of Seven Wasn’t Enough
No one seems to question that this was not the level of scrutiny assigned by the Fifth Circuit below. But I am a bit annoyed that the Supreme Court chose to not conduct its own analysis further at this point. They punted the decision back down to the Fifth Circuit. However the Fifth Circuit decides, one or the other sides will appeal it, and it’ll come back up to the Supreme Court, which will apply the strict scrutiny standard afresh anyway. There seems to be no reason, at least not articulated in the opinion, why this could not have been done today.
Reading between the lines, I think I can glean out the real reason: while seven of eight Justices agree that the Fifth Circuit applied the wrong lens to the case, no more than four Justices can agree on the proper outcome. Three out of the seven Justices voting in today’s majority were dissenters in Grutter (Scalia, Kennedy, and Thomas) and Justice Thomas is explicit that he would have overruled Grutter had he been able to gather four other votes from amongst his colleagues to do so. So apparently, at least four of the remaining Justices (including the lone dissenter, Justice Ginsburg) think that Grutter is necessary to reach the result today.
So, other than agreeing that the wrong standard got applied, there was no majority on how the standard should have been applied. Lacking the ability to get to five votes on the core issue of whether the University of Texas’ plan is appropriate or not under the existing standards, the Court punted.
Thomas Concurrence: What is a “Compelling” Governmental Interest?
Personally, I have never agreed with the assumption by Justice Powell’s split-the-difference opinion in UC Regents v. Bakke that diversity within a public university’s student body is, inherently, a compelling governmental interest. And alone amongst the Justices of the Supreme Court, Clarence Thomas articulates exactly that opinion.
Perhaps unlike Justice Thomas, I’m open to the idea that diversity is, inherently, an “important” governmental interest, and more than ready to sign off on the idea that it’s a “legitimate” governmental interest. I’m a great deal more sympathetic to the idea that a wide variety of educational benefits flow from diversity: better participation from all students in a variety of intracurricular and extracurricular activities, more knowledge packed in to the grades the school dispenses, broader fields of study, more critical thought and challenging of opinion, greater social tolerance in the form of student friendships and romances across racial lines, and the list goes on and on. Diversity is a good thing.
But is it “compelling”?
“Compelling” to me means something that addresses a fundamental issue of the very existence of the government at all: safety and security, the proper functioning of the courts and law enforcement, the vindication of other rights of citizens. That doesn’t mean I don’t like diversity or don’t think the government should pursue it. It means if we didn’t have it, we would continue our existence as a people and the government would continue to function.
Justice Thomas applies a somewhat different definition of “compelling”: “…those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity'” against which it would even be possible to consider race as a factor that might be weighed on a narrowly-tailored basis. Everything else, to Thomas, stinks of the racist logic underlying segregation and slavery. The Fourteenth Amendment forbids state governments from making distinctions amongst people based on race. Period.
As much as I agree with Justice Ginsburg’s sharp disapproval of this last concept — I agree with her that the government cannot and ought not blind itself to both past and present racial tensions within our culture — I cannot find a way to disagree with Justice Thomas that diversity, inherently, is not compelling. A non-diverse student body is not ideal, of course, but survivable. A university with a substantially non-diverse student body would continue to execute its twin core functions of educating its students and producing academic and scientific research. Perhaps it would not do so as well as it would do with the benefit of a diverse student body (and, equally important, a diverse faculty). But it would continue to be a university in every meaningful sense of the word.
Justice Thomas finds two and only two cases in the Supreme Court’s history in which disparate racial classifications have survived strict scrutiny analysis. One of them, Korematsu v. United States (1944) 323 U. S. 214, stands as one of the most odious of decisions in the Court’s history. Korematsu, Readers will recall, affirmed by a 6-3 vote the decision of the Army to relocate Japanese-American citizens from (mainly) the Pacific Coast states to special camps inland throughout the United States for the bulk of World War II notwithstanding that there was no evidence that even a single such citizen was in the least bit disloyal or guilty of any sort of crime. The exigencies of war (read: panic after Pearl Harbor) justified the relocation.
The other, City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469, found in Justice Thomas’ estimation “a compelling interest in remedying past discrimination for which it is responsible” when there is a strong basis for finding that remedial action is necessary. Richmond v. J.A. Croson actually struck down a public contracting scheme that favored minority-owned businesses, on the basis that an insufficient showing of a need for such a program to remediate past discrimination had been made.
Thomas would seem to have some trouble with Richmond v. J.A. Croson absent his precise framing of its internal logic: if the government can use its power in at least some circumstances to redress past racial inequities that it had a hand in creating, then the University of Texas, too, might have such a power because the government of Texas has had a hand in creating racial inequities in the past. This does not, however, get back to the really powerful point in Thomas’ opinion: as great as diversity is (and I do think it’s great) it’s not a “compelling” governmental interest. And neither is the benefit to education which flow from it.
If it’s not the case that diversity is inherently a compelling governmental interest, then the University of Texas needs to find some other justification for its inclusion of race as an overt factor in its admissions criteria to articulate. And I think in the paragraph above, the only possible justification is articulated: the government, in the past, helped create, perpetuate, and enforce invidious and overtly racist laws. Therefore, the society and culture resulting from those laws is at least partially the government’s responsibility. Redress in the form of corrective action is a compelling interest and necessary to get to a world where race stops being important, a world we’re not living in just yet.
At that point, we get in to the question of how much diversity is necessary to reach that goal, and whether other kinds of at least facially race-neutral policies can get us there. Would the Ten Percent rule of Texas law be enough? Available data here show that adding race overtly back in to the PAI shifted the racial balance of the student body at UT Austin by about 3%. Is that enough to reach the “critical mass” of diversity needed to meaningfully (although obviously not completely) remedy past discrimination? Or does the apparently racially-neutral Ten Percent Rule get us far enough that the other dimensions of the program don’t really make that much difference?
That issue would become a question of fact for the trial court to address. Maybe Texas would fail in that part of the case the way the City of Richmond did. Either way, that becomes the battleground: framing the past racial discrimination perpetuated by the state, and how the state can best redress it. This where the Constitution requires the case be fought and the admissions program be justified. And while a lot of the other parts of Thomas’ opinion are not so well-reasoned or at least not backed up by authorities of appropriate legal force (he uses a lot of anecdotal and seemingly cherry-picked social science scholarship to back up his claim that the race-conscious admissions program either might or actually does harm minorities) on this point he’s exactly right.
I’d have voted to remand the matter back to the District Court, not the Fifth Circuit, for further findings of fact regarding the extent to which the state of Texas itself engaged in or supported racial discrimination (limited to the time after adoption of the Fourteenth Amendment because that’s when state discrimination became prohibited by the Equal Protections Clause), the effects of those legal actions by the state on the culture and the economy today, and the efficacy of UT’s admissions program (and others similar to it) in redressing those harmful effects of past state discrimination. If UT could show that its admissions program was narrowly-tailored to address the harms resulting from past discrimination, I would then vote to affirm it; if not, I would vote to void it to the extent that it considered race as an overt factor considered in a student’s admission application. Which is closer to Justice Thomas’ opinion than any of the other opinions articulated in this case.