The Fifth Circuit's Affirmative Action Fumble | Eastern North Carolina Now

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    The author of this post is Jennifer Gratz.

Another awful affirmative action ruling could send the issue back to the Supreme Court

    Earlier this week a three-judge panel of the Fifth Circuit Court of Appeals voted for the second time – in the same case – to uphold racial and ethnic admissions preferences at the University of Texas. This ruling is just as misguided as the first and will likely set up yet another showdown at the Supreme Court.

    Fisher v. University of Texas was decided by the U.S. Supreme Court on June 24, 2013. In a 7-1 opinion authored by Justice Kennedy, the justices vacated an earlier ruling by the same three-judge panel, determining that the Fifth Circuit had not properly applied "strict scrutiny" to the racial policies at Texas' flagship university. The case was then remanded back to lower court for the application of the proper standard of review.

    While waiting for the much-anticipated Fisher decision last year, pundits across the political spectrum speculated that this case could end race-based affirmative action once and for all. The seeming non-ruling from the Supreme Court came as a relief to some and a disappointment to others. Despite the narrow opinion, what the majority said was significant.

    The Court expressed deep skepticism with race preferences and reinforced key restrictions from the 2003 landmark Grutter v. Bollinger ruling. It emphasized that universities not only must prove that any race-based means chosen to attain diversity are "narrowly tailored to meet that goal" but also that they have "the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

    With its Fisher decision, the Supreme Court demonstrated its seriousness about the standard of "strict scrutiny," clarifying that the Grutter decision was not an open ticket for using race preferences and that universities are not to be given deference simply because they say their race-based policies are educationally important and narrowly tailored.

    That should have been a wake-up call for administrators across the country and certainly the judges of the Fifth Circuit. Apparently it was not.

    The Fisher case revolves around the University of Texas' stated goal of achieving a "critical mass" of minority students, so that these individuals do not feel isolated and can therefore contribute positively to the cultural diversity of the campus. This all sounds noble and good, but what exactly constitutes a critical mass? Unfortunately, this vague rationale became no clearer in the course of Fifth Circuit's second hearing.

    Even the lengthy 41-page majority opinion, authored by Judge Patrick Higginbotham, conveniently makes no attempt to provide a clear definition. Higginbotham writes,

• Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race. Grutter defines critical mass by reference to a broader view of diversity rather than by the achievement of a certain quota of minority students.

    Judge Emilio Garza points to the glaring problems with this decision in his dissent:

• Although the University has articulated its diversity goal as a "critical mass," surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University's use of racial classifications in its admissions process is narrowly tailored to its stated goal— essentially, its ends remain unknown. By holding that the University's use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University's claims.

    Judge Garza went on to insist that this remarkable deference given to the University of Texas is plainly at odds with the central holding of Fisher – universities are to be given no deference when claiming their policies are narrow tailored. In order for universities to defend race-conscious policies, they must objectively demonstrate, not just assert, that their policies are the only feasible method of producing diversity and that all race-neutral alternatives have been exhausted.

    Because the university failed to do so, Garza insists the university's race-conscious admissions process "does not survive strict scrutiny."

    Ultimately, the majority decision reflects the fundamental murkiness of the Grutter allowance for "nuanced" uses of race in admissions. In her Grutter dissent, Justice Ginsburg argued that the Supreme Court was allowing racial preferences to continue through "winks, nods, and disguises." She, of course, wanted to see racial point systems continue openly, but her point is incisive.

    Ever since Grutter, universities have moved race-based decisions behind the veil of a supposedly "holistic" review process. University of Texas officials claim that race is "one of many factors" in their consideration, but at the same time they also insist that using only race-neutral alternatives would lead to catastrophic drops in campus diversity.

    Race cannot be one of many factors and at the same time stem the tide against "catastrophic" results. It is either a major factor, or it is not. The way administrators cling to the use of race as a tool for manufacturing diversity suggests that such consideration plays a much bigger role than they are willing to admit.

    In reality, the holistic approach to race-conscious admissions has absorbed the same discriminatory policies but with even less transparency. Instead of calling them quotas, we now use nebulous terms such as "critical mass." Before Grutter, at least applicants could find out how many points their skin color was worth in the admissions process. Now students can only guess, while admission officers make race-based decisions behind closed doors.

    Citizens deserve to have clarity when it comes to whether or not universities are holding their skin color against them. Grutter has only muddied the water on these unsustainable policies, making it harder for concerned individuals to determine if discrimination is taking place.

    The Fifth Circuit's ruling contrasts with the signs that racial preference policies are nearing social, legal and political extinction, as Roger Clegg suggested in this commentary. Our country continues to move decidedly in the direction of equal treatment under the law for each individual citizen — a principle that cannot be sacrificed to any "diversity" policy, no matter how lofty the intentions may sound.

    Fortunately, Abigail Fisher has announced she will appeal the Fifth Circuit's decision.

    This leaves the door open for the Supreme Court to issue the broad ruling many pundits expected from the case's first hearing. Since the Court of Appeals did not or would not strictly scrutinize the university's racial preference policy, once again the Supreme Court needs to clear the muddy waters. The solution is to reverse Grutter and require that government entities and public institutions treat every individual equally without regard to race, gender, skin color, or ethnicity.