NAS California Affiliate Introduces Amicus Brief Filed in Pending Supreme Court Case

John M. Ellis

A petition for certiorari is currently pending before the Supreme Court in the case Fisher v. University of Texas.  It has attracted six amicus curiae briefs in support—among them, one from the California Association of Scholars.  Shortly after the amicus briefs were filed, the Court requested that the University of Texas respond to the petition, thus suggesting that it is giving the matter its attention.  The University's brief is due at the end of November.    

If the petition is granted, two things could happen.  Fisher could provide the Court with the opportunity to reexamine issues originally tackled by the Court in University of California Regents v. Bakke (1978) and Grutter v. Bollinger (2003).  Alternatively, the Court could take a narrower approach and consider only whether the University of Texas has gone beyond the limits of Grutter in setting its present race-preferential admissions policy.     

Since Grutter, which justified no more than a “narrowly tailored use of race in admissions” to enroll a “critical mass” of minorities, many colleges and universities have simply ramped up their use of racial preferences.  At a minimum, the Court should take this opportunity to clarify and reassert the limits of Grutter—a case that was never intended to give colleges carte blanche to discriminate on the basis of race.  Sooner or later, however, the Court will have to re-visit Grutter itself—a decision the California Association of Scholars regards as inconsistent with the Constitution even when it is properly applied.  

The facts of the Fisher case are as follows:  in 1996, the United States Court of Appeals for the Fifth Circuit held in Hopwood v. Texas that racial preferences in college admissions were unconstitutional.  In response, the Texas legislature enacted what came to be called the "10% solution" under which students who graduate in the top 10% of any Texas high school are automatically admitted to the University of Texas.  In part because this approach covers many high schools in inner city and rural areas that have high minority enrollment, it tends to produce a racially diverse student body.  After the implementation of the 10% solution, University of Texas officials repeatedly asserted the new approach was working and that the University of Texas had a racially diverse student body.  Indeed, after the 10% solution was passed, 16.9% of the University's freshman class was Hispanic and 4.5% was African American.  

But when the Supreme Court overruled Hopwood in Grutter v. Bollinger, the University of Texas decided to resume direct race-preferential admissions policies. Its new goal was to assure not just that its student body contained a "critical mass" of racial minority students (which it already had and more), but that each and every class, major or program had that "critical mass." By 2007, 25% of the incoming class was African American or Hispanic under the newly instituted race-preferential admissions policy.

While the Grutter case did not specifically define "critical mass," it is clear from the record that it was not giving colleges and universities the right to discriminate to achieve whatever racial mix appealed most to them.  Grutter approved only policies designed to ensure that a university's student body as a whole had enough minority students to contribute something to the educational process.  A majority of the Court had already decided in Bakke that attempting to achieve racial balancing was not a legitimate goal, and that position was essentially reaffirmed in Gratz v. Bollinger, decided at the same time as Grutter.  Yet the University's policy appears designed to make it more closely "look like Texas"—a clearly forbidden purpose—rather than to confer the educational benefits of a racially diverse student body on all students, which is the only purpose approved by the Grutter Court.  Indeed, the University has admitted as much in its initial “Proposal to Consider Race and Ethnicity in Admissions” drafted after the Grutter decision: “significant differences between the racial and ethnic makeup of the University’s undergraduate population and the state’s population prevent the University from fully achieving its mission." At minimum, the University's policy should be overturned for that reason.    

In an opinion that is breathtaking in its expansiveness, the Fifth Circuit nevertheless approved Texas' policy.  It deferred to the University of Texas on essentially all matters: the University gets to decide how much racial diversity it wants, and if the University insists without evidence that its needs different "racial perspectives" in physics class, then so be it—as far as the Fifth Circuit is concerned.

In response to this sudden lurch toward unlimited preferences, the amicus briefs take a variety of approaches.  A brief submitted by three members of the U.S. Civil Rights Commission (here) took aim at the idea of an educational benefit from preferences, arguing that abundant empirical evidence showed exactly the reverse: minorities who are given preferential admissions do much worse than identically-credentialed students who attend somewhat less competitive schools.  A brief submitted by Richard Sander and Stuart Taylor (here) took the same general approach, but with a special emphasis on what happened following passage of California’s Proposition 209 in 1996.

Sander and Taylor show that by all kinds of measures (graduation rates, participation in demanding majors, numbers of enrolled students, numbers of graduates, and even high school preparation) 209 has much improved minority educational achievement.  In doing this Sander and Taylor make the most powerful case for 209 that has ever been made.  A brief submitted by the Asian American Legal Foundation (here) takes a different tack.  It focuses on the harm that will be done to Asian Americans by the Fifth Circuit’s attempt to reintroduce quotas, and it also takes aim at O’Connor’s notion of an educationally desirable “critical mass.”  How can this be so in the present case, asks the AALF, when the University “grants no preferences to Asian Americans even though they are less well represented in UT Austin classrooms than Hispanics, a racial category granted preference in the admissions process.”

These briefs implicitly raise questions about the wisdom of Grutter, and by doing so raise the question of its being overturned. The CAS brief (here), on the other hand, attempts to cover the possibility that the Court will not choose to take that step at this time.  Our argument would not overrule Grutter, but it would confine it to the narrow circumstances that we believe Justice Sandra Day O'Connor, author of the majority opinion in Grutter, must have intended.  We suggest that if Grutter’s deference to academic authority regarding student body critical mass diversity is to be maintained, it must be applied and explicated with some care.  If an institution claims educational intent for its preferences, that claim cannot be made as a last minute change of terminology at the end of a chain of events that has been dominated by political pressures to achieve racial balancing.  When the entire thrust behind a move to institute preferences has been political, the Court should judge motivation accordingly and not give deference to a claim of educational motivation of which there was no sign until a last-minute change of label.

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