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Playing Ping Pong with Fisher
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The author of this post is George Leef.
The Supreme Court remands the "affirmative action" case with orders for "strict scrutiny."
Fisher v. Texas was one of the first cases heard in the Supreme Court's term this season and one of the last to be decided. Whatever the reason for the long delay, the justices took the path of least resistance and decided to remand the case back to the Fifth Circuit Court of Appeals. Therefore, resolution of the constitutionality of racial preferences has been put off for quite a while.
Abigail Fisher is a white student who applied to the University of Texas, but was rejected. She sued, arguing that the university's policy of racial preferences violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The U.S. district court that first heard the case granted summary judgment in favor of the university. Fisher appealed to the Fifth Circuit Court of Appeals, but that court upheld the district court. The Supreme Court agreed to review the Fifth Circuit's decision.
The legality of using racial preferences in education is not at all a new issue - the Court has been wrestling with it since the 1950s. Its most recent cases were in 2003, Gratz v. Bollinger and Grutter v. Bollinger, both involving the University of Michigan. In Gratz, the Court held that it was impermissible for the university to operate what the majority saw as a quota system that favored undergraduates of certain races. Grutter was less clear. The Court said that the law school could use racial preferences if it conducted a "holistic" evaluation of applicants in which the objective was to secure the claimed "educational benefits" flowing from having a more "diverse" student body.
Unlike Gratz, Grutter contained language (unfortunate in my view) that universities deserve "deference" from courts with regard to their educational missions. In its Fisher opinion, the Fifth Circuit embraced that idea. The University of Texas said that it needed its policy of preferences in order to achieve good educational results (that is, diversity). That was enough for the appeal court's judges to say, "Then who are we to disagree?"
Justice Kennedy's majority opinion strongly rebukes that notion. He wrote that "the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal. On this point, the University receives no deference." That is why the judgment has been vacated and the case remanded. The Court of Appeals did not correctly apply the standard of strict scrutiny, according to the Supreme Court. Ironically, exactly the same thing could be said of the Grutter decision (in which Justice Kennedy dissented).
That "narrow tailoring" language is crucial. Under the Fourteenth Amendment, any policy of sorting people according to race and treating some groups differently than others can only be justified (if at all) by using race as minimally as possible and avoiding it entirely if there are race-neutral means that would produce the same benefits. Back in 2003, the Court in Grutter in effect told Michigan's law school, "We'll trust you on this." In contrast, Fisher just told the University of Texas, "Sorry, but you are going to have to prove that your preference system has benefits that you cannot get in other ways."
The lower courts will now have to apply the standard of "strict scrutiny" to the university's admissions policy. Rather than merely bowing to school officials' claims, the judges are expected to give "close analysis to the evidence of how the process works in practice." Glittering generalities about "diversity" won't suffice.
As the case proceeds, the burden of proof will be on the University of Texas to show that its admissions policy is truly necessary to produce "diversity" and that it has positive educational results. Undoubtedly, the university will try to conjure up "research" purporting to show that diversity - i.e., augmenting the numbers of black and Hispanic students who would have earned admission without preferences by adding some who wouldn't have - is wonderful.
The lower courts will probably be snowed under with claims and counter-claims about diversity, just as the Supreme Court was with the large number of amicus briefs filed in Fisher.
Speaking of those briefs, only Justice Clarence Thomas made any reference to them in his concurring opinion. That opinion is worth careful reading.
To begin with, Thomas would have overruled Grutter and declared that the government may not use race at all in higher education admissions. Why?
Because, he writes, "Government must treat citizens as individuals, not as members of racial, ethnic, or religious groups." That is exactly what the challenged admission policies do - they label students as "representatives" of whatever group they are said to belong to - and then treat some as more desirable than others. The Fourteenth Amendment does not allow that, no matter how important the reasons for doing so might seem to be.
Thomas proceeds to quote from earlier decisions where the Court heard and rejected arguments that racial division was beneficial for minority students. Racial segregation had been defended in Brown v. Board of Education (1954) on the ground that it was better for black students, but whether or not that was true did not matter under the Constitution. Earlier, Oklahoma had tried to defend segregation in higher education by claiming that white students wouldn't tolerate blacks. The Court ruled in McLaurin v. Oklahoma State Regents (1950) that how white students might feel about blacks was irrelevant. Supposedly good reasons could not justify keeping black students out of white universities.
So, how about the claimed good reasons for racial preferences now? One such argument is that we will produce more black leaders if we use racial preferences. Thomas is skeptical about that, but argues that in any event it's beside the point, writing, "It is irrelevant under the 14th Amendment whether segregated or mixed schools produce better leaders."
After arguing that it shouldn't matter even if there are sound arguments for racial preferences, Justice Thomas adds that he believes they have "insidious consequences." In this part of his opinion, he refers to the research by Richard Sander that racial preferences in law school admissions actually have bad results for many of the minority students who are supposedly helped by them.
He also refers to research showing that preferentially admitted students often settle into academically soft and undemanding majors. Texas unwittingly had admitted as much in arguing that it needed to increase "diversity" because minority students were "clustered in certain programs." Justice Thomas replied that preferences were the cause of, not the solution to, such clustering.
Finally, citing the work of Columbia University professor John McWhorter, Thomas argued that racial preferences stigmatize all minority students, including those who would have been admitted on their merits.
Putting those arguments about the harmful effects of racial preferences on the record will prove useful to the attorneys arguing for Fisher and other anti-preference plaintiffs in the future.
What will the eventual outcome be? Justice Kennedy observed that strict scrutiny is not automatically "fatal in fact" to the use of preferences. However, the case for college admission preferences based on ancestry is so pathetic that strict scrutiny or anything remotely approaching it will put an end to the practice.
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The author of this post is George Leef.
The Supreme Court remands the "affirmative action" case with orders for "strict scrutiny."
George Leef, director of research and an author for the John William Pope Center.
Abigail Fisher is a white student who applied to the University of Texas, but was rejected. She sued, arguing that the university's policy of racial preferences violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The U.S. district court that first heard the case granted summary judgment in favor of the university. Fisher appealed to the Fifth Circuit Court of Appeals, but that court upheld the district court. The Supreme Court agreed to review the Fifth Circuit's decision.
The legality of using racial preferences in education is not at all a new issue - the Court has been wrestling with it since the 1950s. Its most recent cases were in 2003, Gratz v. Bollinger and Grutter v. Bollinger, both involving the University of Michigan. In Gratz, the Court held that it was impermissible for the university to operate what the majority saw as a quota system that favored undergraduates of certain races. Grutter was less clear. The Court said that the law school could use racial preferences if it conducted a "holistic" evaluation of applicants in which the objective was to secure the claimed "educational benefits" flowing from having a more "diverse" student body.
Unlike Gratz, Grutter contained language (unfortunate in my view) that universities deserve "deference" from courts with regard to their educational missions. In its Fisher opinion, the Fifth Circuit embraced that idea. The University of Texas said that it needed its policy of preferences in order to achieve good educational results (that is, diversity). That was enough for the appeal court's judges to say, "Then who are we to disagree?"
Justice Kennedy's majority opinion strongly rebukes that notion. He wrote that "the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal. On this point, the University receives no deference." That is why the judgment has been vacated and the case remanded. The Court of Appeals did not correctly apply the standard of strict scrutiny, according to the Supreme Court. Ironically, exactly the same thing could be said of the Grutter decision (in which Justice Kennedy dissented).
That "narrow tailoring" language is crucial. Under the Fourteenth Amendment, any policy of sorting people according to race and treating some groups differently than others can only be justified (if at all) by using race as minimally as possible and avoiding it entirely if there are race-neutral means that would produce the same benefits. Back in 2003, the Court in Grutter in effect told Michigan's law school, "We'll trust you on this." In contrast, Fisher just told the University of Texas, "Sorry, but you are going to have to prove that your preference system has benefits that you cannot get in other ways."
The lower courts will now have to apply the standard of "strict scrutiny" to the university's admissions policy. Rather than merely bowing to school officials' claims, the judges are expected to give "close analysis to the evidence of how the process works in practice." Glittering generalities about "diversity" won't suffice.
As the case proceeds, the burden of proof will be on the University of Texas to show that its admissions policy is truly necessary to produce "diversity" and that it has positive educational results. Undoubtedly, the university will try to conjure up "research" purporting to show that diversity - i.e., augmenting the numbers of black and Hispanic students who would have earned admission without preferences by adding some who wouldn't have - is wonderful.
The lower courts will probably be snowed under with claims and counter-claims about diversity, just as the Supreme Court was with the large number of amicus briefs filed in Fisher.
Speaking of those briefs, only Justice Clarence Thomas made any reference to them in his concurring opinion. That opinion is worth careful reading.
To begin with, Thomas would have overruled Grutter and declared that the government may not use race at all in higher education admissions. Why?
Because, he writes, "Government must treat citizens as individuals, not as members of racial, ethnic, or religious groups." That is exactly what the challenged admission policies do - they label students as "representatives" of whatever group they are said to belong to - and then treat some as more desirable than others. The Fourteenth Amendment does not allow that, no matter how important the reasons for doing so might seem to be.
Thomas proceeds to quote from earlier decisions where the Court heard and rejected arguments that racial division was beneficial for minority students. Racial segregation had been defended in Brown v. Board of Education (1954) on the ground that it was better for black students, but whether or not that was true did not matter under the Constitution. Earlier, Oklahoma had tried to defend segregation in higher education by claiming that white students wouldn't tolerate blacks. The Court ruled in McLaurin v. Oklahoma State Regents (1950) that how white students might feel about blacks was irrelevant. Supposedly good reasons could not justify keeping black students out of white universities.
So, how about the claimed good reasons for racial preferences now? One such argument is that we will produce more black leaders if we use racial preferences. Thomas is skeptical about that, but argues that in any event it's beside the point, writing, "It is irrelevant under the 14th Amendment whether segregated or mixed schools produce better leaders."
After arguing that it shouldn't matter even if there are sound arguments for racial preferences, Justice Thomas adds that he believes they have "insidious consequences." In this part of his opinion, he refers to the research by Richard Sander that racial preferences in law school admissions actually have bad results for many of the minority students who are supposedly helped by them.
He also refers to research showing that preferentially admitted students often settle into academically soft and undemanding majors. Texas unwittingly had admitted as much in arguing that it needed to increase "diversity" because minority students were "clustered in certain programs." Justice Thomas replied that preferences were the cause of, not the solution to, such clustering.
Finally, citing the work of Columbia University professor John McWhorter, Thomas argued that racial preferences stigmatize all minority students, including those who would have been admitted on their merits.
Putting those arguments about the harmful effects of racial preferences on the record will prove useful to the attorneys arguing for Fisher and other anti-preference plaintiffs in the future.
What will the eventual outcome be? Justice Kennedy observed that strict scrutiny is not automatically "fatal in fact" to the use of preferences. However, the case for college admission preferences based on ancestry is so pathetic that strict scrutiny or anything remotely approaching it will put an end to the practice.
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