Affirmative Action’s Long, Slow Death

June 28, 2013
Guest Post

by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over.  Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards.  And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.   

Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.

While Grutter endorsed the idea that the strict scrutiny analysis could allow for some deference to a university’s decision to include racial and ethnic diversity as essential to its educational mission, Kennedy in Fisher notes that “academic judgment” is entitled to “some, but not complete judicial deference….” Slip op. at 9.  But Fisher goes further. It clarifies that the Court is to accord no deference to the university when it reviews the choice of implementation. “The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.” Id. at 10.

Despite this pronouncement, the opinion fails to provide guidance to the lower court on how to apply this standard.  What does it mean to apply a strict scrutiny review when the Fifth Circuit can no longer defer to the university’s expertise in selecting an admissions process that will lead to its educational diversity goal? To be sure, the task is now clear. The Court of Appeals may not rely on a rebuttal presumption of the university’s good faith. Instead, the university must prove to the court that “no workable race-neutral alternatives would produce the educational benefits of diversity.”  Id. at 11. What amounts to sufficient evidence to demonstrate that assertion?

Interestingly, the Fisher opinion noted that the Grutter courtapproved the University of Michigan’s implementation plan, but Grutter was decided after a trial.  The trial court decided Fisher at summary judgment.  Kennedy cautions that strict scrutiny analysis may not be “feeble in fact.” Id. at 13. Perhaps Kennedy was signaling that the Court was not prepared to strike down or uphold affirmative action on a case decided at summary judgment. Fair enough.  But beyond examining administrative cost and whether alternatives achieve the same goal “about as well,” what else should the lower court consider? Id. at 11. Indeed, the Fisher opinion highlights the Fifth Circuit’s observation that it was “ill-equipped” to “second guess” the University’s decision to use a race-based admissions process. (Some might find irony in the Court’s command for more social scientific facts on the effects of race neutral admissions after Justice Scalia’s pronouncement in Association for Molecular Pathology v. Myriad Genetics, Inc., where he could not affirm the details of molecular biology in either his own knowledge or belief; or his expression of skepticism, during oral arguments, concerning the social science data on same-sex families in the DOMA cases.)

The real problem is how to show, to the Court’s satisfaction, that race-neutral approaches were adequately analyzed and discarded in good faith. The Court’s opinion in Fisher obfuscates what the race-neutral admissions process is supposed to achieve—diversity alone or the benefits that flow from it. Specifically, as Fisher moves through its opinion, the language concerning diversity and educational benefits appears to evolve. Early on in the opinion, the Court determines that “[t]he attainment of a diverse student body…serves values beyond race alone, including enhancing classroom dialogue and the lessening of racial isolation and stereotypes.”  Id. at 6. The Court affirms that race for race sake cannot be the goal, but enriching classroom discussions can. However, the Court doesn’t stop there. It also identified goals that are definitively associated with race and the challenge of attending school as a minority student—elimination of stereotyping and racial isolation. But, by the end of the opinion, the Court seems to de-emphasize those benefits, and instead, the opinion focuses on the nature of the actual diversity that is acceptable. By the conclusion,the focus is less on the benefits that flow from diversity and more on a conception of diversity in which race is but one ingredient on a full and varied recipe list.

In light of this conflicting language, the typical college or university must be left with a number of questions about how to present its case post-Fisher.  Should the facts a university presents focus on why race-neutral processes won’t achieve a diverse student body in its broadest definition as delineated at the end of the opinion?  Or should the facts focus on why race-neutral processes won’t achieve a diverse student body with a specific set of educational benefits that flow from it?  And what particular benefits are now acceptable? And for which students?  Does enhanced classroom conversation become more important than decreasing racial isolation and stereotyping, as stated early on in the opinion? This task is made more difficult by the fact that achieving these goals will be quite university specific. A look at The New York Times report on how minorities have fared in states with affirmative action bans reveals how varied the outcomes will be (none of them encouraging).  This leads to yet another concern:  a successful model that passes constitutional muster at one school may be struck down at another school.

Thus, it is entirely possible that affirmative action in higher education could remain constitutionally viable for some time to come, but in theory only. In practice, we might find that colleges and universities are too wary to open themselves up to litigation by choosing a race-based method of admissions to achieve the permissible goal of diversity -- especially if courts start striking down even a few race-based processes because of their belief that “race-neutral” approaches are available.

Thus, Fisher appears more foreboding than at first blush. Potentially, no court will have to make the highly political pronouncement that U.S. colleges’ and universities’ goals of diversity do not amount to a compelling governmental interest. More likely, the Court could determine that the clock has expired on the need for affirmative action.  Put another way, maybe Fisher is a signal that O’Connor’s dream has come true: the U.S. has simply outgrown the need for affirmative action. But it is equally possible, based on a purely technical application of the Fisher rule, that courts could prevent the implementation of affirmative action plans while leaving the doctrine untouched. As Justice Ginsburg states in her dissenting opinion, “[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious.” It is difficult to imagine the creation of a diverse student body, developed through programs based on the goals in Fisher, in which race will not be a consideration.

Finally, one has to hand it to Justice Thomas. While I have suggested that Fisher represents a passive-aggressive approach to ending affirmative action, Thomas remains a stalwart in his desire to see affirmative action ended in both theory and in practice. One would hope, though, that if Scalia won’t confirm science he doesn’t believe or know, Thomas would not rely on science that has been proven wrong. He relies on Richard Sander’s long and repeatedly maligned mismatch theory (still) to support his argument that “racial engineering” has “insidious consequences.” Moreover, he continues to rely on Thomas Sowell’s work on affirmative action, which also has been critiqued as incomplete and incorrect. I sent Justice Thomas a studyI conducted in which I tested whether affirmative action causes stigma. The results of my work, limited though the study was, revealed that affirmative action appeared to be associated with less racial isolation and lessracial stigma.

This study, in fact, was cited in six of the amicus briefs for the Fisher case. Moreover, Thomas ignores Douglas Massey and Margarita Mooney’s study that shows that minority students admitted under affirmative action at elite schools outperformed legacy admits who benefitted from the legacy admission program -- another type of racial engineering.

Moreover, while it has become quite fashionable to speak of class-based affirmative action, as I have argued in Meeting across the River: Why Affirmative Action needs Race & Class Diversity, class cannot be a proxy for racial diversity.Using class-based affirmative action is unlikely to increase racial diversity on campus because admission to college does not necessarily mean enrollment in that college. Yet another type of social engineering is at work. Over half the states now offer financial scholarships based on academic achievement rather than need. And most of those states are located in the South, where poor minorities disproportionately reside.

Indeed, a studyof Georgia’s merit based approach to financial awards revealed that white wealthy students disproportionately received the scholarships. Perhaps Thomas and I could agree on one point. Affirmative action as a tool to create diverse student bodies and the educational benefits that flow from them has not reached enough minority students. A studyI published recently showed that, indeed, more minority students in affirmative action states than anti-affirmative action states reported experiencing the benefits of affirmative action—benefits stated in Grutter.  Unfortunately, more work needs to be done. Even in affirmative action states, less than half of the minority students reported experiencing the benefits that flow from a diverse student body.

Thus, it is not enough to create a constitutionally acceptable admissions process to achieve diverse campus populations. The Court has forced institutions of higher learning to focus on the wrong question.  Instead, these institutions should focus on a different process: how to deliver a college experience in which all students benefit. And now would be the time, during affirmative action’s waning hours.