As we turn the page on the 2015, colleges and universities around the country are on edge awaiting a contentious Supreme Court decision on affirmative action, one of the most sacrosanct policies in higher education. While affirmative action has historically enjoyed a relatively favorable reception at the high court, the legitimacy of race preferences in college admission decisions is now facing its most daunting legal challenge in decades. After several adverse rulings in recent years, many wonder whether the Court will finally deal a death blow to the controversial policy. However, careful examination of the Court’s recent decisions reveals that the judicial rolling back of affirmative action is likely already a fait accompli and that university “diversity” programs are facing a tenuous future.
It is interesting that despite its modern reputation as a discriminatory policy against races and ethnicities disfavored by the state, affirmative action began as a call for genuine equal opportunity and “colorblindness” at a time when segregation and other forms of institutional racism were a way of life. Rather than demanding racial preferences, affirmative action was premised on the idea that minorities could improve their economic and social situations if they no longer faced formal racist barriers in such arenas as hiring and education. The ethos of this period was perhaps best captured by the Civil Rights Act of 1964, which forbid discrimination on the basis of “race, color, religion, sex or national origin” and expressly prohibited race preferences and quotas. Over the years, however, the concept has transmogrified from an initiative to eliminate active discrimination to a system accomplishing precisely what the Civil Rights Act opposed. This evolution happened much less through explicit statutory measures, but furtively through a series of over-reaching executive orders, judicial interpretations and bureaucratic rules.
The pivotal case currently before the Court concerning the aggressive implementation of race-conscious affirmative action is known as Fisher II, a rehashing of the 2013 case of Fisher v. the University of Texas. The road to Fisher II began with the 1978 case of the Regents of the University of California v. Bakke. On the one hand, the divided Court established in Bakke that racial quotas in school admissions were indeed prohibited due to their violation of the Equal Protection Clause. On the other hand, Bakke did give use of race preferences the official imprimatur of the Court by ruling that universities could use race as one of many factors — or as a “plus” factor — in their admission processes. The Court ruled that having a diverse student body does constitute a compelling state interest for the educational benefits it offers. However, the Court also made clear the interest of campus diversity must be understood broadly and cannot be reducible simply to racial or ethnic diversity, which would imply that a certain number of people from a racial group would be sufficient to achieve this diversity (i.e. a quota). If each applicant is instead considered individually, weighing all of their personal attributes and how they may contribute to the diversity of the student body, race may be legitimately used as one of those factors.
The 1995 case of Adarand Constructors, Inc. v. Peña, Secretary of Transportation ruled that the use of race preferences in any federal affirmative action program must be reviewed under strict scrutiny, meaning that racial considerations must serve a compelling state interest, that affirmative action programs must be narrowly tailored to achieve that interest and that no race-neutral alternative could achieve the same result. Adarand provided much of the foundation of the Court’s rulings in the parallel 2003 cases of Grutter v. Bollinger and Gratz v. Bollinger, which are closely bound to the fate of Fisher II.
In Grutter, which involved the University of Michigan Law School’s affirmative action admission policy, the Court affirmed the Bakke decision — the use of race can be used as a plus factor in admissions, as it represents a compelling state interest. Furthermore, the Court ruled that the law school’s affirmative action policy was indeed narrowly tailored. As the majority opinion asserted: “The Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” However, in its explanation the Court did not rely on any evidence that the law school’s program considered race as a plus rather than a decisive factor. The primary rationale given in the majority opinion was that the program emulated a Harvard affirmative action program that was cited as a model program in the Bakke decision. The Court also said that it took “the Law School at its word” that no race-neutral alternative existed to achieve its diversity objectives.
In Gratz v. Bollinger the Court similarly ruled that the University of Michigan’s use of race as an admission factor was constitutional on the basis that diversifying the campus held a compelling interest for educational institutions. As the school argued, preference given to applicants because of their race is no different from the preference granted to children of alumni, athletes and others who presence benefits the school. However, the Court also ruled that the university’s policy of automatically awarding 20 points to “underrepresented minority” applicants was not narrowly tailored enough to meet the Bakke standard. Using this system, race had the effect of being a not a plus factor, but a decisive factor in admissions, resulting in acceptance for “virtually every minimally qualified underrepresented minority applicant.” Therefore, the university had violated the Equal Protection Clause and Title VI of the Civil Rights Act.
Enter Fisher v. the University of Texas. The suit was brought by a young student, Abigail Fisher, who was denied admission to the University of Texas (UT) and sued, arguing that the school had rejected her on the basis of her race in violation of the Equal Protection Clause and Title VI. The Fifth Circuit ruled in favor of the university and its admission policy. However, the Court, in a 7-1 decision (Justice Kagan recused herself) ruled that the lower court failed to apply strict scrutiny in reviewing the policy and that it must review the case again. The Court notably declined to declare the UT policy unconstitutional, but it did set one important standard: In demanding that the Fifth Circuit reevaluate its application of strict scrutiny, the Justices let it be known that perfunctory judicial approval of university affirmative action programs would not be tolerated. Rather, courts must verify that programs indeed serve the school’s purpose of achieving the educational benefit of diversity and that there is no alternative race-neutral means that would provide the same results.
In 2014, the Fifth Circuit Court again decided in favor of UT. The high court agreed to hear the case again in 2015, and a ruling is expected in at the end of the current term. Supporters of affirmative action are pessimistic regarding _Fisher II_’s future this time around. In the first place, the situation is compounded for UT in light of a race-neutral diversity policy the university employs whereby the top 10% of all high school graduates receive automatic admission. As many of the public schools in Texas are racially self-segregated, the 10% rule results in considerable racial diversity among its student admissions.
Secondly, the presumed swing-vote in the case, Justice Kennedy, dissented in the 2003 Grutter case, arguing that the University of Michigan Law School’s affirmative action program, which was similar to the UT program, did not pass the strict scrutiny test. Kennedy wrote that the program used by the Law School “mask[ed] its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” Kennedy also endorsed the idea that the burden is on the universities to prove that their affirmative action admission programs pass constitutional muster. It is likely Kennedy would rely on these same views to strike down the UT program if the university could not demonstrate that its program is constitutional.
Would striking down the UT program end affirmative action? Legal analysts note that a ruling in favor of Fisher is unlikely to end affirmative action generally because, in the first place, Fisher and her attorneys did not ask the Court to overrule its decision in Grutter that the state has a compelling interest in using race in admissions to obtain the educational benefits of diversity. There is likely a good reason they did not: Although four of the high court justices would most certainly side with overruling Grutter, one need only look to the opening paragraph in his Grutter dissent to see that Kennedy has already endorsed the legitimacy of using race as a plus factor in admissions and believes that Bakke got it right.
However, the damage of Fisher II appears to already have been done before the ruling has been issued. The Court has put universities on notice that courts can no longer merely sign off on the constitutionality of affirmative action programs. This is bad news for university diversity policies: Race preference programs are often carried out behind closed doors. There is little accountability in many cases and no way to know whether race is truly being consider a plus factor or a decisive factor. There also must be evidence that there is no other race-neutral means to achieve the university’s diversity objectives. The very fact that there may be no way of knowing how many schools consider race as a factor — because they do not bother to collect empirical evidence to validate that their programs are necessary, narrowly tailored and that no race-neutral alternative would achieve the same result —suggests that many affirmative action programs are doom to fail the strict scrutiny test. The higher education establishment no doubt senses this possibility. Whatever the outcome of Fisher II, the affirmative action status quo at the university level has likely changed for good.