Tag: racial preferences

Fifth Circuit Disobeyed Supreme Court in Allowing Racial Preferences at UT-Austin

Last year, in Fisher v. University of Texas at Austin, the Supreme Court delivered a blow to the use of racial preferences in university admissions by reversing a Fifth Circuit panel opinion that had allows the use of race in UT-Austin’s admissions policy. That wasn’t the end of the story, however; after holding that the university bears the burden of proving that its use of racial preferences is necessary and narrowly tailored—a point on which university administrators are due no deference—the Court remanded the case back to the Fifth Circuit to determine whether UT had offered evidence sufficient to prove that its use of race was “narrowly tailored to achieving the educational benefits” of diversity. 

Recall that UT-Austin’s admissions program fills most of its spots through a race-neutral Top Ten Percent Plan—which offers admission to high school graduates in the top ten percent of their class—then fills the remaining seats with a “holistic” rating that takes into account various factors typical to admissions programs (including race for certain preferred minorities).

Well, on remand, the Fifth Circuit panel split 2-1 but once again sided with the university, holding that even if the Top Ten Percent Plan already provided a “critical mass” of minority students, the use of racial preferences was necessary to achieve some other special kind of diversity.  The dissenting opinion by Judge Emilio Garza points out how the majority has deferred, once again, to the university’s hand-waving claim that its use of racial preferences is narrowly tailored to an actual, appropriate interest, without having actually proven anything approaching what is constitutionally required. 

Abigail Fisher, the white former applicant suing UT-Austin, has asked the full Fifth Circuit to rehear the case. Cato has filed a brief supporting that petition. 

In our brief, we argue that the Fifth Circuit panel failed to apply actual, deference-free strict scrutiny, failed to require the university to define the “critical mass” its race-based policy is intended to achieve, and failed to require the university to explain with particularity why race-blind measures wouldn’t be able to achieve its interests. Rather than require that UT-Austin even roughly define what quanta of black and Hispanic students is necessary to further its diversity goals–a particularly meaningful task given the significant black and Hispanic presence on campus resulting from the Top Ten plan–the university was allowed to skate on vacuous platitudes about “critical masses,” “tipping points,” “upper bands,” and the like. But if interests so vacuous they read like a parody of a Thomas Friedman column were all that strict scrutiny required, why would the Supreme Court have even bothered taking up the Fisher case?

The constitutional laziness and deference the panel majority showed is striking.  The Fifth Circuit should hear this case en banc and correct the errors made by the panel majority, which contradict circuit precedent in various ways.

Further background and Cato’s previous filings in the case are available here.

It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

Government Racism on Trial: Schuette and EEOC v. Kaplan

Today the Supreme Court hears argument in the Schuette case, regarding the constitutionality of Michigan voters’ decision to ban racial discrimination and preferences in public university admissions (the equivalent bans for public employment and contracting haven’t been legally challenged). In no conceivable world can the Equal Protection Clause – the constitutional provision that bans racial discrimination – prohibit a state law that bans racial discrimination. The Supreme Court should and almost certainly reverse the lower court’s ridiculous judgment to the contrary, and will likely do so with a great degree of unanimity on the “political structure” aspect of the case.

Coinciding with that oral argument, Cato is getting involved in a lower-court case called EEOC v. Kaplan Higher Education Corp. Here’s the situation: Following several incidents of employee theft, Kaplan University did what any reasonable employer might do in similar circumstances: it instituted heightened screening procedures for new hires. This process included credit checks to filter out potential employees at greater risk of committing theft. These checks made no mention of any applicant’s race and Kaplan didn’t collect any race information from applicants, thus making the hiring process both race-neutral and race-ignorant. Nevertheless, the Equal Employment Opportunity Commission, which itself uses credit checks in hiring decisions, sued Kaplan under Title VII of the Civil Rights Act, claiming that the use of credit checks has an unlawfully disparate impact on African American applicants.

Because Kaplan doesn’t keep racial data for applicants, the EEOC had to come up with its own data to prove its case. The agency thus created a team of “race raters,” a group of seemingly random people who sorted Kaplan’s job applicants into racial categories based only on the applicant’s name and DMV photo. (You can’t make this stuff up!) Because of the unscientific and unreliable nature of this data, the EEOC was soundly rebuffed in the federal district court in Ohio where it brought its case.

Now before the U.S. Court of Appeals for the Sixth Circuit, the EEOC is continuing its awkward crusade against employers’ use of credit checks. Cato, joining the Pacific Legal Foundation, the Center for Equal Opportunity, the Competitive Enterprise Institute, and Project 21, has filed a brief supporting Kaplan and arguing that the EEOC’s use of “race raters” and its incautious application of disparate-impact theory violate the Fifth Amendment’s equal protection guarantee.

Classifying people into racial categories based on their name and physical features is a demeaning violation of the Constitution’s mandate that individuals be treated as individuals and not reduced to mere members of a racial class. We also argue that the EEOC’s irresponsible use of disparate-impact theory to attack reasonable business practices contradicts the spirit of equal protection by forcing employers to consider race for all of their business-related decisions in order to avoid bureaucratic entanglement.

When combined with the ongoing Fisher v. UT-Austin saga, we see that while Jim Crow is dead, various government actors continue to offer massive resistance to the ideal of a colorblind society.

Requiring Equal Protection Doesn’t Violate the Equal Protection Clause

It’s unusual that the Supreme Court would choose to review an affirmative action case even though Fisher v. UT-Austin was still pending. Ordinarily, when faced with a second case on the same legal issue, the justices “hold” it until they decide the first, then either send the second one back to the lower court to apply the newly announced rule or, perhaps, schedule it for oral argument on any additional issues that need to be addressed. Yet Schuette v. Coalition to Defend Affirmative Action is no ordinary case. 

Schuette asks whether a ban on racial preferences — or at least how that ban was enacted — violates the Equal Protection Clause, whereas Fisher asked whether their use does. In Schuette, 58% of Michigan voters approved Proposal 2 (a.k.a. the Michigan Civil Rights Initiative), a state constitutional amendment that prohibited racial preferences in public education, employment, or contracting. That ban was challenged by a coalition of groups and individuals who support the continued use of affirmative action, particularly at institutions of higher education.

A federal district court upheld the ban, but then a panel of the U.S. Court of Appeals for the Sixth Circuit struck it down by a 2-1 vote. The full Sixth Circuit then agreed that Prop 2 was unconstitutional, in a contentious 8-7 ruling that produced five separate dissenting opinions. Now before the Supreme Court, Cato has joined the Pacific Legal Foundation and four other organizations on an amicus brief arguing that Michigan voters have acted constitutionally by prohibiting race- and sex-based discrimination or preferential treatment in public university admissions.

We contend that Prop 2 doesn’t violate the Equal Protection Clause under the Court’s “political structure” precedent, which outlaws subtle distortions of governmental processes in a way that places special burdens on the ability of minority groups to achieve beneficial legislation. The measures struck down in under that line of precedent differ marked from Prop 2 because, unlike in those older cases, minorities now have more protections against discrimination. Moreover, these protections apply across all levels of state government, not just discrete functions like housing and school busing.

Furthermore, Prop 2 creates no racial classifications so it cannot trigger “strict scrutiny” review. The simple fact that Prop 2 deals with race does not imply that it somehow disenfranchises racial minorities. If the Court finds that the “political structure” doctrine prohibits Prop 2, that precedent must be overruled as inconsistent with the text of the U.S. Constitution — though this is probably unnecessary given more modern precedent.

Interestingly, the California Civil Rights Initiative, known as Proposition 209, has been upheld repeatedly by the (notoriously left-wing) Ninth Circuit. Indeed, there is a wealth of evidence showing that minorities are succeeding under that system, which also prohibits the consideration of skin color in college admissions — and has led to higher attendance and graduation rates.

We urge the Supreme Court to side with Michigan’s voters and hold their ban on racial preferences (which the Court itself has admitted to be on shaky constitutional ground) to be constitutional.

The Court will hear the Schuette case in October or November.

College Applicants Should Be Judged on Their Merits, Not the Color of Their Skin

The Supreme Court has waded back into the affirmative action thicket, taking up the issue of the proper role, if any, of race in college admissions, in the case of Fisher v. University of Texas at Austin, which it will be hearing this fall, likely in October.

Abigail Fisher, who is white, was denied admission to the University of Texas at Austin even though her academic credentials exceeded those of many admitted minority applicants. She challenged UT-Austin’s consideration of race in selecting its incoming freshmen but lost before the district court in light of the Supreme Court’s 2003 ruling in Grutter v. Bollinger.

In Grutter, a divided Court held that using race as a factor (but not one tied to a set number of points or quotas) was justified in the name of diversity. But UT-Austin’s admissions program treats race in a different way, and gets different results, than did the admissions program Grutter upheld at the University of Michigan Law School.

The Fifth Circuit panel nevertheless affirmed the district court, but Judge Emilio Garza specially concurred to say that while he was bound by Grutter, that decision seemed to conflict with other precedent and with the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit then voted 9-7 against rehearing the case en banc (before all judges on the court), over a sharp dissent from Chief Judge Edith Jones that emphasized how the ruling would allow states to play fast-and-loose with Grutter’s narrow-tailoring requirement.

Now before the Supreme Court, Cato filed an amicus brief supporting Abby Fisher and arguing that the Fifth Circuit showed blind deference to UT’s policy rather than the constitutionally demanded strict scrutiny. The lower court explicitly declined to evaluate the merits of UT’s decision to consider race, instead assuming the institution’s good faith. Under this rule, a public university’s mere assertion of a diversity interest, irrespective of the university’s precise circumstances or actual motivations, trumps an applicant’s right to be treated as an individual rather than a racial specimen.

We also point out that the Fifth Circuit ignored the Supreme Court’s requirement (from the 1989 case of City of Richmond v. J.A. Croson Co.) that the government demonstrate a “strong basis in evidence” for racial classifications in order to smoke out the illegitimate motivations that can underlie such schemes. That is, Grutter upheld Michigan’s racial preferences because the school showed that minority enrollment would have plummeted to almost nothing without them, while UT had already achieved real diversity (beyond even that created by Michigan’s preferences) with a race-neutral law that guarantees admission to anyone graduating in the top 10 percent of a Texas public school.

Finally, we note that even if UT could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, UT justifies preferences to Hispanics by pointing to the need for a “critical mass” of such students, even as it denies preferences to Asians, who comprise a smaller portion of the student body.

We urge the Supreme Court to reign in UT’s unbridled use of race in admissions decisions and take an important step toward ensuring that young Americans are judged on their qualifications and character rather than their skin color.