Affirmative Action: Why Fisher I matters even more

Abigail Fisher. Photo credit: The Daily Texan

With the Black Lives Matter movement gaining support nationwide, the release of Turning the Tide, a report by Harvard’s Graduate School of Education recommending a college-admissions overhaul, and Fisher v. University of Texas-Austin (“Fisher II”) pending, affirmative action is back in the spotlight just in time for the presidential campaign season.

In 2013, the Supreme Court remanded Fisher v. University of Texas-Austin (“Fisher I”) for a stricter application of the strict scrutiny standard of review.  In July 2014, after the remand, a Fifth Circuit panel again endorsed University of Texas’s admissions policies, over an impassioned dissent by Judge Garza.  Fisher appealed, again, to the Supreme Court.

In December 2015, the Supreme Court of the United States heard oral arguments in Fisher II.  Considering that the Court probably would not have agreed to rehear the case if it believed the Fifth Circuit was correct, it is possible that the Court will bring an end to affirmative action policies altogether.

Although many critics considered Fisher I anti-climactic, Justice Kennedy made several moves in his majority opinion in Fisher I that bear importantly on Fisher II.  But before we examine Fisher I, we first must lay the groundwork of what cases came before.  

Where we’ve been

1978: Regents of the University of California v. Bakke

Justice Powell, writing for the majority, first applies strict scrutiny review to affirmative action admissions policies.  Under strict scrutiny, the law or policy in question is valid only if it is narrowly tailored to further a compelling state interest.

Powell identified diversity as a compelling state interest and endorsed race as a factor for admission under the equal protection clause of the Fourteenth Amendment.  Nonetheless, the Court held that the medical school’s admissions policy was unconstitutional because the policy used racial quotas.  These quotas were overly broad, and, therefore, failed the “narrow tailoring” prong of strict scrutiny.

2003: Gratz v. Bollinger & Grutter v. Bollinger

Gratz examined the admissions program at the University of Michigan, which used a points system in evaluating applicants.  The university automatically allocated 20 points to underrepresented racial minorities.  Like the racial quotas in Bakke, Michigan’s point system allowed race to be a decisive factor for admission.  As a decisive factor, the Court said Michigan did not narrowly tailor their use of race to further a compelling state interest and thus, held that the admissions policy was unconstitutional.

On the other hand, Grutter upheld the University of Michigan Law School’s admissions policy, which also considered race.  Unlike the undergraduate admissions policy, the Law School did not automatically allocate points to students of underrepresented racial minorities.  The Court again asserted that a diverse student body constituted a compelling state interest for the purposes of strict scrutiny review.  However, Grutter found that the law school narrowly tailored its policy because the consideration of race was permissible only if it is one factor among others to achieve diversity.

Where we are

There are two paths to admission into The University of Texas-Austin (“UT-Austin”). The first is a Top Ten Percent program, which automatically admits the top ten percent of each Texas high school’s graduating class.  The second is a more traditional, holistic approach, where the school admits applicants based on a combination of their Academic Index (“AI”) and Personal Achievement Index (“PAI”).  Race is a relevant factor in the PAI, but the University does not assign a specific number of points.  According to UT-Austin, considering race allows the school to enroll a “critical mass” of minority students in order to attain the benefits from diversity.

In 2008, Abigail Fisher applied for admission to UT-Austin.  Although a Texas resident, Fisher was not in the top ten percent of her high school’s class, so her application was subject to review under the holistic approach.  After the school rejected her, she sued the school, claiming that the consideration of race in the PAI violated the equal protection clause of the Fourteenth Amendment.

Kennedy’s Majority Opinion in Fisher I

Justice Kennedy, writing for the majority, held that the District Court incorrectly applied strict scrutiny review, as described by Bakke, Gratz, and Grutter, to UT-Austin’s admissions policy.  The Court, therefore, vacated the ruling and remanded the case back to the lower court. Kennedy focused on a means-end distinction to achieving diversity. Specifically, Kennedy said, “Once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal,” and further that, “On this point, the University receives no deference.”

According to Kennedy, the District Court made a mistake in applying strict scrutiny analysis by assuming the University was acting “in good faith” with their use of race in the PAI for admissions.  Instead, Kennedy says, the District Court must examine not only the result of the admissions program (achieving educational benefits from diversity), but also the means by which the University accomplishes this.  If, and only if, the University can prove that no other race-neutral measures exist to achieve the same result, their use of race narrowly tailored enough to pass strict scrutiny.

Where we’re going

Kennedy made several important moves in Fisher I.  First, Kennedy’s explicit endorsement of the importance of educational benefits flowing from diversity cements diversity as an important factor in higher education and as a valid compelling state interest under strict scrutiny.

Second, Fisher raised the bar on affirmative action policies in public university admissions.  While Grutter mostly deferred to administrators on the means through which they attain diversity so long as race is one factor among many, Fisher I silently reversed this deference element.  By affording administrators no deference, Kennedy placed the burden back on administrators to prove that their means are narrowly tailored.  Justice Kennedy previously made the same point in his dissenting opinion in Grutter.  Now, as the author of the majority opinion in Fisher, Kennedy made his opinion the opinion of the Court.

The key to what Kennedy will do in Fisher II may lie with Judge Emilio Garza’s powerful dissent from upholding UT-Austin’s admissions policies.  Judge Garza explained that the root of the problem is that UT-Austin’s administrators never defined what a “critical mass” of minority students means in achieving diversity.  Before 2013 courts deferred to universities on whether they narrowly tailored their means to create a diverse student body.  But since affirmative action jurisprudence changed in Fisher I, courts themselves must decide whether a university narrowly tailored their means to diversity.  Garza’s argument is that because UT-Austin has not defined its goal of a “critical mass,” it is impossible for the court to determine whether UT-Austin narrowly tailored their policy towards this goal.

Given that Kennedy shifted the burden to universities to prove narrow tailoring the first time the Court heard Fisher’s arguments, it is highly possible that once again the Court will find that the Fifth Circuit incorrectly applied strict scrutiny.  How far the Court may go, however, i.e. whether or not affirmative action will fall altogether, is unclear.  On one hand, Kennedy made it clear that diversity is a valid, compelling state interest for the purpose of strict scrutiny review. On the other hand, as Judge Garza pointed out, it is impossible to determine if the University narrowly tailored their means to achieve when universities do not define their goals.  If Kennedy wanted to eliminate affirmative action, finding that any consideration of race fails narrow tailoring would do the trick.