Unbridled Use of Race in School Admissions Must be Curtailed

October 9, 2012 • Commentary
This article appeared in JURIST on October 9, 2012.

In Fisher v. University of Texas at Austin, to be argued October 10, 2012, the US Supreme Court wades back into the affirmative action thicket, taking up the issue of the proper role, if any, of race in college admissions.

Abigail Fisher, who is white, was denied admission to University of Texas at Austin (UT‐​Austin) even though her academic credentials exceeded those of many admitted minority applicants. She challenged the school’s use of race in selecting its incoming freshmen but lost before the US District Court for the Western District of Texas 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 (not policies tied to racial quotas or a racial point system) was justified in the name of “diversity.” However, UT‐​Austin treats race in a different way, and gets different results, than did the admissions program Grutterupheld at the University of Michigan Law School. That is, Grutter upheld Michigan’s racial preferences because the school showed that minority enrollment would have plummeted without them — an assertion itself belied by California’s experience post‐Proposition 209, which outlawed racial preferences in public education and employment — while UT‐​Austin 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 high school.

A panel of the US Court of Appeals for the Fifth Circuit nevertheless affirmed the district court’s ruling for the university. Judge Emilio Garza specially concurred, however, 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.

That is how the case got to the Supreme Court — where the Cato Institute filed an amicus brief supporting Fisher and arguing that the Fifth Circuit showed blind deference to UT-Austin’s policy rather than utilizing the constitutionally demanded strict scrutiny test (a test mandating that a policy be struck down if it is not narrowly tailored to fit a compelling interest). Here, the Fifth Circuit explicitly declined to utilize the strict scrutiny test and evaluate the merits of the school’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. The Fifth Circuit ignored the Supreme Court’s requirement (from the 1989 case of City of Richmond v. J.A. Croson Co.) that reviewing courts must use the strict scrutiny test, where the challenged entity must demonstrate a “compelling interest” and “strong basis in evidence” for racial classifications in order to “smoke out” the illegitimate motivations that can underlie such schemes.

As the Court opined in Croson: “The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” However, “blind deference” is the only possible characterization of the Fifth Circuit’s decision to uphold UT-Austin’s policy. While acknowledging that all racial classifications by government are subject to strict scrutiny, the Fifth Circuit declined to scrutinize “the merits of the University’s decision” here.

Instead, the Fifth Circuit simply presumed the university’s “good faith” in both choosing to discriminate among applicants based on race and implementing that choice through a “personal achievement score.” A public university’s mere assertion of a “diversity” interest, no matter the precise circumstances, thus trumps the applicant’s right to be regarded as an individual rather than as a specimen of a particular race or ethnicity.

Grutter certainly does not compel that result. Contrary to popular belief, Grutter did not overrule the Supreme Court’s settled precedent requiring a “strong basis in evidence” to support a governmental entity’s use of racial classifications, even where its interest is one that the Court has recognized, in general terms, to be compelling. Absent such a showing, the Croson Court said, “there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Beyond serving to “smoke out” illegitimate motivations, a strong basis in evidence is essential to define the contours of the government’s interest so as to make possible the narrow tailoring of racial preferences that is required even in the exceptional circumstances when such preferences are allowed. Only such specificity prevents general assertions of interest from being used to “justify race‐​based decisionmaking essentially limitless in scope and duration.”

The importance of the strong‐​basis‐​in‐​evidence requirement is confirmed by UT-Austin’s claim that its use of racial preferences was necessary to achieve a “critical mass” of underrepresented minorities. The (dubious, but accepted) evidence in Grutter demonstrated that, absent preferences, the University of Michigan Law School’s minority student population would have dropped to almost nothing. However, as mentioned above, UT‐​Austin has achieved substantial racial diversity through its race‐​neutral “Top 10 Percent Law.” For that reason, UT‐​Austin cannot demonstrate the necessity of its use of race or the scope of the preferences that it assigns to different minority groups. In reality, the UT-Austin’s racial preferences have only a minimal effect on the composition of the student body, far from commensurate with the heavy toll that consideration of race exacts and hardly the “compelling” interest required to satisfy strict scrutiny.

Finally, even if UT‐​Austin could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, the school justifies preferences for 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.

However, the result would be the same even if UT‐​Austin could demonstrate that racial references are necessary to achieve a “critical mass” of underrepresented minorities. The concept of “critical mass” is arbitrary in every respect, such that its use can be supported in every instance by manipulation of the racial groups for which a “critical mass” is sought or the level at which “critical mass” is applied. “Critical mass” is antithetical to individualized consideration and the true pluralism that is the hallmark of diversity. Far from necessary to realize any legitimate end, “critical mass” is a hindrance to achieving what Justice Anthony Kennedy called in his Grutter dissent, “the harmony and mutual respect among all citizens that our constitutional tradition has always sought.”

The Supreme Court should reign in UT-Austin’s unbridled use of race in admissions decisions and take an important step toward ensuring that young Americans are judged on their qualifications rather than their skin color.

About the Author
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.