In Grutter v. Bollinger, the U.S. Supreme Court held that the use of race in school admission programs may be constitutionally permissible only if necessary to achieve student body diversity.[i] Today it is widely accepted by the courts that diversity forms the only constitutional justification for affirmative action programs. Stare decisis notwithstanding, however, it may be time to consider an alternative to the diversity rationale in light of the implications it carries for the most recent challenge to affirmative action in school admissions. A challenge that is likely to come again before the Supreme Court this coming term.
In Fisher v. Univ. of Tex. at Austin, the Supreme Court vacated the Fifth Circuit’s decision upholding the University of Texas’s (UT) race-conscious admissions program, and remanded the case back to the appellate court for further analysis.[ii] While the Court reaffirmed the diversity rationale as a constitutionally permissible basis for the use of race in school admissions, the Court faulted the appellate court’s application of the “narrow-tailoring” prong of strict scrutiny. Specifically, the Court emphasized that a race-conscious admission program must be necessary to achieve the educational benefits of diversity and, that in making this determination, the University’s judgment merits no judicial deference. Courts must thus carefully scrutinize a school’s efforts to achieve diversity before resort to race, and must ensure that any subsequent use of race is absolutely necessary to achieve a diverse student body.
For those unfamiliar with UT Austin’s admission policy, the University’s admission system consists of two parts: a Top Ten Percent (TTP) race-neutral plan which automatically fills around 80% of available slots by admitting the top ten percent of high school graduates from Texas high schools, and a holistic review process which considers race only as one factor among others in filling out the remaining slots.
On July 15, 2014, the Fifth Circuit upheld for the second time UT Austin’s race-conscious admission program, finding that the use of race is narrowly tailored and necessary to achieve the educational benefits of diversity.[iii] In a strongly worded dissent, Judge Emilio Garza chides the majority for, among other things, failing to comply with the Supreme Court’s command that any use of race be necessary to achieve diversity. The dissent is understandably puzzled by how an affirmative action policy resulting in “0.92% African-American enrollment and 2.5% Hispanic enrollment” can be said to be necessary to the University’s diversity interests when the overwhelming majority of minority students are admitted through the race-neutral TTP plan.[iv] Given that most minority students were admitted under the race-neutral TTP plan, the 200-plus minority students admitted through the School’s race-conscious program resulted in only a small increase—approximately 2 percent—in minority enrollment. How then, the dissent argues, is this small increase in minority enrollment necessary to achieving the University’s diversity interests.
At first glance, the dissent’s argument has powerful appeal, considering that the University already achieves over 20% minority enrollment strictly by race-neutral efforts, and thus arguably need not resort to race-based preferences to promote its diversity interests. Admittedly, it is quite difficult to accept the majority’s assertion that the University’s race-conscious admission policy is necessary to achieve the educational benefits of a diverse student body. With or without the use of race, the TTP plan results in over 20% minority enrollment and would thus leave the University’s diverse racial makeup largely intact.
However, the stark reality is that abandoning the use of race in UT Austin’s admission program leaves diversity—an interest originally designed to enhance the educational opportunities available to disadvantaged racial minorities—dependent on a far more pervasive racial inequity: the de facto resegregation of the U.S. secondary education system. In other words, the high minority enrollment achieved by the University’s race-neutral TTP plan entirely depends on the “increasing resegregation in Texas public schools.”[v] Thus, as noted by the Fifth Circuit, to abandon the use of race in the University’s admission policy would effectively “put in place a quota system pretextually race neutral.”[vi] This is so because, although the TTP plan results in substantial minority enrollment by selecting the highest-achieving students of Texas high schools, it does so against the backdrop of an increasingly segregated public school system.
Accordingly, if the Supreme Court were to invalidate UT Austin’s race-conscious admission program on the grounds that the TTP race-neutral plan achieves sufficient diversity to obviate resort to race-based preferences, such a holding would be entirely contingent on the segregationist status quo. One would be mistaken to assume that this holding would be limited to Texas schools or even southern schools. In fact, several northern states suffer from a similarly segregated public school system.[vii] Once recognized as providing a race-neutral alternative, every challenge to affirmative action in school admissions would center on the feasibility of an automatic admission policy modeled after UT Austin’s TTP plan. The fact that a university has not elected to institute such a plan would presumably be irrelevant since the mere feasibility of a race-neutral approach (capable of achieving a diverse student body) is all strict scrutiny requires to preclude consideration of race.
However one feels about affirmative action, there is something quite unsettling, if not perverse, in relying on a state’s segregated school system as a means by which to invalidate its affirmative action policies. It is, in effect, the exploitation of one racial inequity (i.e., the resegregation of public schools) for the purpose of perpetuating another (i.e., the racial disparity in educational opportunities). This is especially true in light of Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,[viii] where the Court departed from decades of precedent to declare unconstitutional race-conscious efforts at school integration.[ix] If Judge Garza’s reasoning prevails on appeal—i.e., if affirmative action programs are declared unconstitutional because school resegregation makes a race-neutral approach viable—then the combined effect of Parents Involved and Fisher, far from bridging the black-white education gap, would carve it into stone. With Parents Involved already barring race-conscious integration efforts, Fisher would serve to solidify existing racial disparities by foreclosing the only variety of race-based remedies presently available to local officials.
One would hope that if and when Fisher makes its way back to the Supreme Court, the justices would be loath to endorse such a morally depraved, if constitutionally sensible, position. A better course of action would be to reconsider altogether the constitutional justification for race-sensitive admission policies. That is, to finally recognize that race-based preferences do not offend the Equal Protection Clause when their purpose is, “not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.”[x] After all, it was that disgraceful past which prompted the Clause’s very enactment. To now employ the Equal Protection Clause against those whom it was intended to protect would frustrate the purpose of the Fourteenth Amendment.
Were the Court to recognize that bettering the educational prospects of disadvantaged minorities is a permissible state interest under the Equal Protection Clause, then race-conscious policies effecting a minimal increase in minority enrollment would not prove self-defeating. This is because the narrow-tailoring analysis under strict scrutiny changes based on the type of interest the school asserts in support of the race-conscious policy. When the school’s interest in race-based preferences has to be couched as “the educational benefits of a diverse student body,” then surely a showing to the effect that the school may attain substantial racial diversity through race-neutral means rings the death knell for affirmative action. But if undoing a dual school system and giving black students equal access to educational opportunities may constitutionally justify race-based preferences, then the TTP race-neutral plan and all the diversity it achieves would be of no consequence under strict scrutiny because affirmative action would still be “necessary” to bridge the black-white education gap.
Nevertheless, the Court has on several occasions rejected redress of past discrimination as a compelling interest justifying race-based preferences. The remedial rationale was first rejected in Regents of Univ. of Cal. v. Bakke,[xi] and then again eleven years later in Richmond v. J.A. Croson Co.[xii] While the Croson court did not expressly reject the remedial rationale, it did foreclose any future reliance on it. Conceding that remedying past discrimination is a compelling state interest, the Court reasoned that any affirmative action scheme designed to further that interest must be based on more than a generalized claim of past societal discrimination.[xiii] Instead, the Court would demand precise statistical data of identified discrimination in a particular industry. Thus, unless tailored with precise mathematical certainty, remedying past discrimination cannot constitute a compelling state interest under the Equal Protection Clause.
But the Court failed to offer a persuasive explanation for requiring that past discrimination be asserted with mathematical precision, merely reiterating that the Equal Protection Clause requires “color blindness”; a position that stands in sharp contrast to the Court’s view in 1873 that any reasonable construction of the Fourteenth Amendment must account for the social evil that the Amendment was designed to remedy.[xiv] Indeed, the same Congress that passed the Civil War amendments also adopted the 1866 Freedmen’s Bureau Act, a legislative program designed to benefit African-Americans, both socially and economically, to the exclusion of other races.[xv] Fully cognizant of a century’s worth of discrimination, the Croson court may have hurriedly dismissed the remedial rationale lest it legitimates a never-ending system of racial redress, whose continuity would remain “necessary” under strict scrutiny to undo centuries of unequal treatment.
While it may be tempting to conceive of the constitutional promise of equal protection as “colorblind,” such a conception blinks reality. To be sure, the notion that a person’s skin color is irrelevant to how that person should be treated does underlie the Equal Protection Clause. But to contend that the constitution requires colorblindness ignores “the reality that many ‘created equal’ have been treated [for centuries] as inferior both by the law and by their fellow citizens.”[xvi] The Court ought to simply recognize that centuries of race-based discrimination permit a race-based remedy for that discrimination.
[i] Grutter v. Bollinger, 539 U.S. 306 (2003).
[ii] Fisher v. Univ. of Tex., 133 S. Ct. 2411 (2013).
[iii] Fisher v. Univ. of Tex., 2014 U.S. App. LEXIS 13461 (5th Cir. July 15, 2014).
[iv] Fisher, 2014 U.S. App. LEXIS 13461, at *29–30.
[v] Fisher, 2014 U.S. App. LEXIS 13461, at *48.
[vi] Id. (emphasis added).
[vii] See, e.g., The Civil Rights Project, A Status Quo of Segregation: Racial and Economic Imbalance in New Jersey Schools, 1989–2010 4 (Oct. 11, 2013).
[viii] 551 U.S. 701 (2007).
[ix] Steven V. Mazie, Up from Colorblindness: Equality, Race, and the Lessons of Ricci v. DeStefano, 2 Law J. for Soc. Just. 39, 44 (2011).
[x] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 325 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part).
[xi] 438 U.S. 265 (1978).
[xii] 488 U.S. 469 (1989).
[xiii] Croson, 488 U.S. at 499.
[xiv] Slaughter-House Cases, 83 U.S. 36, 72 (1873).
[xv] Act of July 16, 1866, ch. 200, 14 Stat. 173.
[xvi] Bakke, 438 U.S. at 327 (Brennan, J., concurring in the judgment in part and dissenting in part).