W. E. B. DuBois, America’s first black Ph.D., was one of the founders of the NAACP and an indefatigable opponent of white supremacy.k A reformer, he was also an elitist, famous for his assertion that black America needed a “talented tenth” that would serve as the vanguard of the black masses. DuBois was the ideological ancestor of the racial activists whom Thomas openly detests. Just as Washington accused DuBois of being excessively invested in advancing the interests of black elites to the detriment of the black masses, so, too, does Thomas reprove defenders of affirmative action who, in his view, fail to focus sufficiently on racial minorities with “real” problems—problems more severe than potential rejection from a top twenty law school; problems that preclude one from being even a plausible candidate to any law school; problems such as dropping out of high school or becoming enmeshed in criminality. Affirmative action at the University of Michigan Law School, Thomas noted, did “nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.”90
As I noted previously, there is merit in calling attention to the limits of racial affirmative action for purposes of expanding the scope of egalitarian reform. But that is not what Thomas was up to. He was using a classic tactic of reaction: deploying against modest reform inflated aims and the disappointment that accompanies them.91 No one claims that affirmative action, much less affirmative action in higher education, is a panacea for all of “the challenges facing our Nation.” Thomas was just creating a straw man to knock down. He asserted that affirmative action does “nothing” for those unable to take advantage of elite higher education. “Nothing” overstates the case (as Thomas is wont to do). Black youngsters in Detroit who somehow manage to graduate from high school with educational skills that give them a chance at completing college will likely find a number of institutions of higher learning that will give them special assistance—educationally, socially, financially—because of the affirmative action ethos that Thomas disparages.
Grutter was embraced with relief by many who feared that the Court was about to repudiate Bakke. The ruling has also been applauded by some who believe that O’Connor’s elaboration of “diversity” put the concept on a far broader and stronger basis than that which Powell had set forth. Powell’s diversity was a pedagogical hunch, the hypothesis of educational authorities that schooling would be improved by heterogeneity on campus. O’Connor’s diversity, by contrast, contained not only the pedagogical hunch, but ideas that the Court had seemingly eschewed in previous affirmative action rulings—the need for racial-minority role models, the importance of factoring in how racial minorities assess the fairness of institutions, attentiveness not only to justice regarding individuals but justice regarding groups, the imperative to facilitate racial integration. O’Connor’s opinion recalled, for some, memories of the best of the Warren Court era, as when she intoned that “effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”92
O’Connor’s expansive rhetoric in Grutter does provide the potential for a judicial breakout from the narrow confines in which affirmative action has long been stuck. That potential has been enhanced by the strong, instructive, and hopeful readings given to Grutter by formidable interpreters such as Robert Post, Jack Balkin, and Cynthia Estlund.93 Judicial language, however, is never self-enforcing; its fate is determined by what others do with that language. The reelection of Barack Obama on November 6, 2012, increased the likelihood that in the future, newly appointed judges and justices will be disposed toward nurturing and building upon O’Connor’s expansive Grutter rhetoric. But that is only a distant possibility. For now, O’Connor’s rhetoric and, indeed, the very holding that that rhetoric sought to justify, are in the hands of a Supreme Court majority that is more likely to constrict rather than expand the current contours of affirmative action jurisprudence.
FISHER V. UNIVERSITY OF TEXAS
On February 21, 2012, the Supreme Court announced that it would review Fisher v. University of Texas at Austin. This case featured Abigail Fisher and Rachel Michalewicz, white applicants who failed to gain admission to the University of Texas (UT) in 2008. They sued, claiming that they were victimized by a process that illicitly discriminated against them on account of their race. Recall that in 1996, in Hopwood, the Fifth Circuit Court of Appeals had ruled that UT would no longer be permitted to count race as a plus for purposes of attaining diversity. The numbers of blacks and Latinos enrolling at UT plummeted. Subsequently, legislation was enacted for the purpose of, among other things, using “race-neutral” means to enlarge the presence of blacks and Latinos in the student body. This legislation provided that, with exceptions irrelevant here, Texas high school seniors in the top 10 percent of their class would gain automatic acceptance to any Texas state university. An openly expressed aim of this legislation was to assist the best racial-minority students. It would enable them to gain automatic admittance to a Texas university by being the top students where they attended high school, even if the academic level of their school was lower than that of peer institutions and even if their standardized test scores were lower than those of competitors. Since schools, mirroring residential patterns, are often racially distinct enclaves, the legislators thought that the Top Ten Percent Plan would allow the best racial-minority students to come to the fore in the competition for places in Texas universities, whereas previously they would have been submerged in a sea of better-credentialed white applicants.
The Top Ten Percent Plan succeeded only modestly in raising the number of racial minorities at UT. In the plan’s first year, African American enrollment at UT rose from 2.7 percent to 3 percent, while Latino enrollment rose from 12.6 percent to 13.2 percent. In 2004, African American enrollment rose to 4.5 percent, while Latino enrollment rose to 16.9 percent. Whites, too, were eligible for the Top Ten Percent Plan and reaped benefits from it. But it assisted racial minorities disproportionately. In 2004, among freshmen who were Texas residents, 77 percent of the enrolled black students and 78 percent of the enrolled Latino students had been admitted under the Top Ten Percent Plan. By contrast, only 62 percent of the white students had been admitted under the aegis of that plan.
In 2003, the Supreme Court’s Grutter ruling superseded Hopwood, opening the door in Texas once again to using race explicitly as a plus in university admissions. The UT administration walked through that door. First, it commissioned studies to assist in determining whether the university should supplement the Top Ten Percent Plan with a Grutter-like layer of race-sensitive affirmative action. One study examined smaller classes (five to twenty-four students) and found that in 2002, 90 percent of such classes had zero or one black student, 43 percent had zero or one Latino student, and 46 percent had zero or one Asian American student. A second study surveyed undergraduates regarding their impression of life on campus and in the classroom. Many minority students reported feeling isolated, and a majority of all students said that in their view there was “insufficient minority representation” in classrooms for “the full benefits of diversity to occur.”94
University authorities concluded that “diversity” was essential to the optimal realization of its missions, because diverse student enrollment “break[s] down stereotypes,” “promotes cross-racial understanding,” and “prepares students of an increasingly diverse workplace and society.” According to UT’s Proposal to Consider Race and Ethnicity in Admissions, Texas was failing to assemble the “critical mass” of underrepresented students needed to attain the full educational benefits of diversity. To remedy this perceived failing, UT began to include race as a factor to be considered in making selections. It is the reintroduction of race as a positive feature in an applicant’s profile that the plaintiffs challenge in Fisher.
A United States district court ruled in favor of UT. A panel of the United States Court of Appeals for t
he Fifth Circuit upheld the district court. Writing for a unanimous three-judge panel, Patrick E. Higginbotham ruled that UT’s counting of race as a plus was constitutional, even though it was layered upon the Top Ten Percent Plan, which was itself largely animated by a desire to achieve more “diversity.” He warned that the “ever increasing number of minorities gaining admission under [the Top Ten Percent law] casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like [race as a plus] admissions program.”95 Still, for Judge Higginbotham and his colleagues, the UT admissions process as a whole was consistent with Grutter.
The Fifth Circuit’s ruling, however, was attended by expressions of misgivings. First, as noted above, Judge Higginbotham evinced some anxiety over the legality of the race-as-a-plus diversity program, since it sat atop the Top Ten Percent Plan, which itself had been begun to address perceived deficiencies of diversity. “That the Top Ten Percent [Plan] … threatens to erode the foundations UT relies on to justify implementing Grutter policies,” he observed, “is a contention not lacking in force.”96 Second, another judge on the panel, Emilio M. Garza, wrote a special concurrence that complained bitterly about what he viewed as the wrongheaded Supreme Court precedent to which he had to conform. “I concur,” he wrote, “because despite my belief that Grutter represents a digression in the course of constitutional law, [the panel’s] opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error.”97
Third, several judges on the Fifth Circuit moved to have the entire court, en banc, review the judgment of the panel.l 98 This effort was rebuffed. But the chief judge of the Fifth Circuit, Edith H. Jones, and four colleagues nonetheless penned a scathing dissent in which she charged that the panel had “essentially abdicate[d] judicial review.”99 The dissenting judges seeking en banc review complained, among other things, that the panel had authorized “the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.”100 According to the dissenters, “more than 20 percent of the entering freshmen [at UT] are already African American and Hispanic, resulting in real diversity even absent a Grutter plan.” The additional diversity contribution of the university’s race-conscious admissions plan, they asserted, was “tiny,” and thus far from indispensable to creating a “critical mass” of underrepresented racial minorities. Under these circumstances, they argued, the UT plan amounted to merely “gratuitous racial preferences” and should not be deemed a narrowly tailored affirmative action program that met the requirements of strict scrutiny.
Although the dissenters failed to convince a sufficient number of Fifth Circuit judges to force a rehearing of Fisher, they probably played a role in attracting the Supreme Court’s interest in the case. The Supreme Court’s announcement that it would review the Fifth Circuit’s handiwork alarmed defenders of affirmative action and buoyed opponents.
Interested parties deluged the Court with briefs. The petitioner argued that the Fifth Circuit misapplied the requirement that any use of race by public officials in making admissions decisions must be subjected to “strict scrutiny.” The Fifth Circuit had erred, the petitioner maintained, by allowing UT to pursue a goal of mirroring the racial demographics of the state—a goal the petitioner condemned as “racial balancing” that was “patently unconstitutional.” The actual purpose behind UT’s “racial engineering,” the petitioner charged, was not diversity for pedagogical purposes but rather the effectuation of a racial formula that was “purely representational.”101 Having impugned what she perceived to be the state’s real, as opposed to its merely nominal, goal, the petitioner next challenged the necessity for racial selectivity at UT. The defendant, the petitioner averred, “should not be permitted to employ gratuitous preference when a race-neutral policy has resulted in over one-fifth of University entrants being African-American or Hispanic.”102
After arguing that the Fifth Circuit had erred, the petitioner next asserted that if the Fifth Circuit had applied Grutter rightly, that precedent itself warranted reconsideration. “If the Fifth Circuit’s reading of Grutter is permissible,” the petitioner declared, “that decision should be clarified or reconsidered to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”103
Various individuals and organizations supported the petitioner as amici curiae. Lawyers representing several organizations, including the California Association of Scholars, the Reason Foundation, the Individual Rights Foundation, and the American Civil Rights Foundation, launched a frontal assault on Grutter, calling for it to be overruled. “The diversity rationale,” former attorney general Edwin Meese III wrote, “is a mere pretext masking invidious discrimination.”104 Lawyers filing a brief on behalf of anti–affirmative action public intellectuals, including Abigail and Stephan Thernstrom, similarly called for the overruling of Grutter. According to them, research “indicates that diversity as generated by race-based admissions simply does not lead to […] purported benefits. Quite the contrary, the evidence suggests that use of race-based admissions actually undermines race relations on college and university campuses … [and] negatively impact[s] black and Latino students.”m 105
UT’s lawyers stressed the significance of stare decisis, emphasizing that the university’s “admissions plan was modeled on the type of plan upheld in Grutter and commended by Justice Powell in Bakke.”106 They acknowledged that its racially explicit affirmative action program differed in certain ways from the program challenged in Grutter. But they insisted that those differences should make UT’s program more, rather than less, palatable to affirmative action skeptics, particularly Justice Anthony Kennedy, to whom the respondent’s brief repeatedly addressed itself beseechingly. Noting, for instance, that Justice Kennedy had objected to the Michigan Law School’s affirmative action plan because, in his view, it used race “to achieve numerical goals indistinguishable from quotas,” the respondent’s brief in Fisher maintained that UT “[had] not set any ‘target’ or ‘goal’ for minority admissions.”107
The petitioner argued that UT was engaged in “racial balancing” insofar as the state’s racial demographics constituted part of the predicate of the institution’s overall admissions strategy. UT countered, however, that it was not involved in racial balancing and that its admissions officers neither monitored the racial composition of classes nor worked backwards from any explicit or implicit racial goals to reach any defined racial target. Eschewing any political commitment to racial representation, UT’s lawyers insisted that the university’s “objective in considering race was to achieve the educational benefits of diversity.”108 UT’s attorneys conceded that officials had paid some attention to comparisons between proportions of racial groups in the state’s population and proportions of racial groups in the university’s student population. But the attorneys maintained that those comparisons had been consulted merely for the purpose of identifying problems, not for the purpose of designating solutions. “The point of considering such data,” they wrote, “was not to ensure that the university reaches some representational target; it was to assess whether minority groups are underrepresented at the university because, among other things, they are systematically faring poorly in the admissions process.”109
Petitioners argued that the racial diversity generated by the Top Ten Percent Plan obviated the need for an explicitly race-based affirmative action program. UT countered with several responses. It declared that in Grutter the Court had “specifically rejected the argument that percentage plans are a complete, workable, and constitutionally required alternative to the individualized consideration of race in holistic review.”110 Rebutting the belief in some circles that percentage plans constitute a costless process, UT’s attorneys explained that “percentage plans have serious educational tradeoffs.” The university “seeks to assemble a class that is diverse in innumerable ways�
��including race—that advance its mission of educating students and preparing them to be the leaders of tomorrow.”111 The percentage plan, however, “with its single-minded focus on class rank—makes such nuanced judgments impossible.” Furthermore, the percentage plan “forecloses the consideration of other academic criteria, including the quality of the applicant’s high school, the nature of her course load, and her performance on standardized tests.”112
UT’s lawyers also noted that the Top Ten Percent Plan substantially advantaged minority students at underperforming, racially isolated schools over minority students at stronger, racially integrated schools. Even when the latter were better prepared than their counterparts at weaker schools, they often found themselves left out of the top 10 percent category because of the relative strength of the schools they attended. Officials at UT wanted desperately to admit and recruit these minority students, whom they saw as having “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as breaking down racial stereotypes.”113 Emphasizing how the absence of an explicitly racial affirmative action plan would significantly diminish diversity even with the continuation of the Top Ten Percent Plan, UT posited in its brief:
The African-American or Hispanic child of successful professionals in Dallas who has strong SAT scores and has demonstrated leadership ability in extracurricular activities but falls in the second decile of his or her high school class (or attends an elite private school that does not rank) cannot be admitted under the top 10% law. Petitioner’s position would forbid UT from considering such a student’s race in holistic review as well, even though the admission of such a student could help dispel stereotypical assumptions (which may be reinforced by the top 10% plan) by increasing diversity within the diversity.
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