Dissecting Fisher v. University of Texas at Austin (Part Two)


By Lester Asamoah

U.S. Supreme Court


As you know, we collectively decided on a two-part analysis of Fisher v. University of Texas at Austin here at Thirty-Eight Minutes. David and Jacob argued dissenting opinions on Friday, and if you haven’t read them yet, I encourage you to check out the primer and their arguments before continuing in this post. David and Jacob are incredibly hard acts to follow, but I’ll give it the old college try. I’ll jump right into my argument trusting that you’ve read the primer.

It only makes sense to frame this in the way the court analyzes the question, as David did previously. Which leads us to ask the same two questions: (1) Does the state actor have a compelling interest supporting its action? (2) And is the action narrowly tailored to achieve that interest? Also, as you’ll recall, the burden of proof falls on the state actor. In this case, the burden of proof is on the University of Texas at Austin. And this burden of proof, as established in Regents of Univ. of California v. Bakke by Justice Powell, should be under strict judicial scrutiny. Given that race is a social construct and quite fluid, scrutinizing cases involving race makes sense.

In answering the first question of compelling state interest, I truly believe that there is a compelling state interest behind affirmative action programs. I have many wider beliefs behind that, but I will stick closely to the legal arguments here. In the aforementioned Regents of Univ. of California v. Bakke, the University of California Medical School at Davis [UC Davis Medical School] failed to prove that Mr. Allan Bakke would not have gotten into the UC Davis Medical School because he was more qualified than the candidates who were accepted by the quota system that UC Davis established during the two years he sought acceptance into the school. The Supreme Court ruled in favor of Mr. Bakke. Where things get interesting, however, is that the majority opinion was split. While there was an overwhelming 8-1 ruling for Bakke, the majority of that majority opinion did confirm a compelling state interest in increasing racial diversity in the medical field. This idea of racial diversity as a compelling state interest has survived legally, notably in Gratz v. Bollinger and Grutter v. Bollinger despite schools’ failures to narrowly tailor their policies.

The University of Texas at Austin argued they specified their compelling interest for racial diversity in their “Proposal to Consider Race and Ethnicity in Admissions” by “’the promot[ion of] cross racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “’cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’” The proposal was a result of a year-long study where they concluded that a race-neutral applications process was not meeting this goal. In following the logic of why the University of California at Davis solidified a compelling state interest by diversifying the medical field, there is similar logic present in the university’s case. Skipping to the second part of the proposal, preparing the student body for an increasingly diverse workforce and society is in line with a compelling interest and quite demonstrable. Cross-racial understanding is a compelling interest for the university. Phi Gamma Delta Fraternity at the university hosted a “border patrol” themed party in 2015. And if that doesn’t demonstrate enough of a lack of cross-racial understanding: in 2013 an African-American student was pelted with a bleach-filled balloon. I have to concede that the addition of minority students by no means will prevent things like this from happening. But, the university can clearly demonstrate some flaws of cross-racial understanding. I hate to make multiple concessions, but I admit I find the having as set of leaders with legitimacy pretty dubious in their justification of diversity. How does one measure what leaders have legitimacy? And how would diversity support that in any way? One could argue that leaders who have faced a diverse array of ideas are likely better than leaders who haven’t been exposed to new ideas. I digress.

The University of California at Davis [UC Davis] as a whole admittedly was easier to justify because it’s addressing a single field. But, in Gratz v. Bollinger the compelling state interest of diversity survived when put to the test of the University of Michigan undergraduate program, despite the ruling that the policy was not narrowly tailored. My opinion is that diversity is critical for the success of our nation, and that a way to achieve this is by higher education. I know that the effects of having a diverse workforce is not as apparent as the compelling interest of public health and national security. But diversity does impact both of those fields: in public health, as hinted at with UC Davis, we need doctors that are from diverse backgrounds. Language skills, public health programming, and patient-doctor relationships are critical for public health; diversity plays an important role in advancing public health. On national security, we’ve made terrible policy mistakes by having a small cadre of like-minded people making regrettable decisions. The coups that the United States have played a hand in throughout Latin America and Iran are examples. Much less the ineptitude of the FBI in years past in their terrorizing minority communities from a complete lack of understanding with those communities. Yes, diversity is hard to quantify and measure. But it is highly valuable.

I wouldn’t do justice (pun intended) to David and Jacob if I didn’t dive deeper into the narrow tailoring issue. In Grutter v. Bollinger the hallmarks of a narrowly tailored program are defined as: (1) admissions that do not insulate each category of applicants with certain desired qualifications from competition with all other applicants, (2) places candidates on the same footing for consideration, (3) exhausts alternative options for increasing diversity, and (4) proving that the actions taken are contributing directly to the attainment of that compelling state interest. I agree with David and Jacob in that the University of Texas at Austin did not meet the burden of proving their admissions program to be narrowly tailored to meet their objectives.

To be clear, the admissions program in place at the University of Texas at Austin is in line with the first two hallmarks of a narrowly tailored program. The combination of their Academic Index and Personal Achievement Index is flexible, considers diversity factors other than race, and does not preclude anyone or establish reserved admissions of any kind. As for the third hallmark, the university is unique in that it has a law which gives admission to anyone in the top 10 percent of their high school in Texas. And this admission process is responsible for around 75 percent of their freshman class admits. Justice Alto, in his dissent, brings up two important points: (1) why did the university walk back the argument of not attracting the “right” kind of minority students through the top 10 percent program? And (2) what is a “critical mass” of Hispanic and African-American students? It’s alarming to think that any argument was ever made for attracting the “right” kind of student – the university and state should be working to improve these schools that may be struggling to prepare their top ten percent for the university. With the fourth hallmark, there were also some holes in the university’s argument behind their methods for measuring a critical mass of minority students. Unlike Grutter v. Bollinger, the university did not seem to make it incredibly clear as to how it is getting underrepresented students in spaces where they, well…are underrepresented. Overall, solutions for ameliorating the lack of diversity in universities will take exhaustive work before the admissions process happens. Also, how do we know when we have enough minority students? Quotas have clearly been ruled out of the process. The use of affirmative action is positive, but how can we measure it? Do we need to measure it?

The letter of the law should never be moved by personal beliefs. I believe in affirmative action, but in a legal analysis, the University of Texas at Austin should have lost this case. But, I also believe that there is an established compelling state interest for diversity. Training our future business and public leaders requires more cross-cultural competency than ever before. We’ve seen the impact of not having diversity and not sharing ideas. The University of Texas is a fine institution, but it always finds a way to crush my hopes (i.e. the OU/Texas football rivalry game). The burden of proof was not met, but they had the resources to meet that burden. I can’t in good judgement say they should have won. However, I can in good judgement say that I believe that they absolutely had the tools necessary to comply with the letter of the law.

This is a good wake up call for the apostates of affirmative action – rightly or wrongly, there is a greater demand for quantifiable results and we have to find creative solutions to meet scrutiny or to somehow improve diversity in universities outside of the admissions process.

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