By David Postic and Jacob Daniel
Yesterday was a day of excitement for law nerds and other people of the Supreme Court-watching persuasion: we were glued to our SCOTUSblog-filled screens as the Court issued several controversial decisions having to do with everything from immigration to affirmative action to the Fourth Amendment. There has already been a fair amount of analysis and commentary on these decisions (which have subsequently been overshadowed by #Brexit), and you will likely see more of it in the days and weeks to come. For now, though, we would like to focus on one case in particular: Fisher v. University of Texas.
This article is meant to provide a brief history of affirmative action jurisprudence and a breakdown of arguments against the majority opinion; you can find the response article here.
Brief Primer on Affirmative Action
Before we get to yesterday’s opinion, some background on affirmative action. The concept has its official American origins in John F. Kennedy’s Executive Order 10925, which required that government employers “not discriminate against any employee or applicant for employment because of race, creed, color, or national origin” and “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” LBJ expanded affirmative action to cover government contractors, and to guard against gender discrimination. Soon, however, affirmative action expanded to address racial disparities in other areas, including education. Universities began including race in their admissions criteria, leading to constitutional concerns that resulted in substantial litigation.
Regents of the University of California v. Bakke (1978)
The first Supreme Court case to address affirmative action in the university admissions process was Regents of the University of California v. Bakke. (Fun fact: the case was originally filed in the Superior Court of California for Yolo County. Yolo. County.) The opinion—a plurality, meaning the analysis was unable to garner a majority of the court, i.e., it does not have precedential value—held that using racial quotas in college admission decisions violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which affirms that “[n]o state…shall deny to any person within its jurisdiction the equal protection of the laws.” While Bakke eliminated racial quotas, it nevertheless allowed race to be considered as one of many factors in the admissions process. Such admissions systems, however, would be subject to strict scrutiny, meaning that the challenged program must be narrowly tailored to achieve a compelling state interest.
Over the next 25 years, federal appellate courts ruled on various affirmative action programs, but none of these cases reached the Supreme Court. But in 2003, the Court decided the landmark cases of Gratz v. Bollinger and Grutter v. Bollinger, both of which addressed affirmative action policies implemented by the University of Michigan.
Gratz v. Bollinger (2003)
Gratz concerned an applicant to the University of Michigan’s undergraduate program. Gratz claimed that she was denied admission based on her race (Caucasian)—namely, that the University unconstitutionally favored minorities in the admissions process. At the time, Michigan used a points-based admissions system—applicants were awarded points based on items such as race (20 points), athletic ability (20 points), depth of essay (up to 3 points), leadership and service (up to 5 points), and personal achievement (up to 5 points). Chief Justice Rehnquist, writing for the Court, struck down this system as a violation of the Fourteenth Amendment. He reasoned that the points system, assigning points based on outward characteristics, treated applicants in a manner that prized their race over their individual accomplishments.
Grutter v. Bollinger (2003)
Grutter was a slightly different case, this time involving the University of Michigan law school. Similar to Gratz, Grutter argued that the law school unconstitutionally discriminated against her by using race as a factor in the admissions process. Unlike the undergraduate admissions system, however, the law school did not assign a set number of “points” for race. Rather, it was one factor among many used to judge applicants. Justice O’Connor’s majority opinion upheld the law school’s affirmative action program, holding that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The program was narrowly tailored, said O’Connor, because it was not designed to be permanent; it was merely being used to obtain a “critical mass” of minority students. O’Connor noted that she expected such programs would be unnecessary within 25 years.
Fisher v. University of Texas at Austin (2013), i.e., Fisher I
This brings us to Fisher. This is actually the second time the Court has addressed this case. In the wake of Gratz and Grutter, the Texas state legislature passed a law requiring that the University of Texas at Austin accept all students in the top 10% of each Texas high school’s graduating class, regardless of race. Applicants who, like Fisher, fail to graduate in the top 10% of their class can still gain admission by scoring highly under a “holistic review” that takes into account many factors, including race.
Fisher sued the University; both the district court and the Fifth Circuit Court of Appeals upheld the admissions system. On Supreme Court review in 2013, however, the Court reversed the Fifth Circuit on a largely procedural issue: the Fifth Circuit did not apply strict scrutiny to assess UT’s admissions program, essentially placing the burden on Fisher to prove the system was not constitutional, rather than on the University to prove that it was constitutional. On remand, the Fifth Circuit applied strict scrutiny and reached the same conclusion, upholding the admissions program. Fisher then appealed again to the Supreme Court, and that is how we got to the case that was decided yesterday. Isn’t law fun?
Fisher v. University of Texas at Austin (2015), i.e., Fisher II
Justice Kennedy, writing for the majority (which was actually only four members, since there is one vacancy on the Court and Justice Kagan recused herself from deliberations), upheld the Fifth Circuit’s decision and found UT’s admissions system constitutional. Specifically, he held that the University had a compelling interest in advancing diversity in the classroom. “Considerable deference,” he wrote, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Fisher submitted several arguments claiming that there were ways to more narrowly tailor the program, but the Court rejected those proposals. Kennedy did, however, order the University to “to engage in constant deliberation and continued reflection regarding its admissions policies,” and he suggested that a similar system could fail strict scrutiny under different circumstances.
Justice Alito (joined by Justice Thomas and Chief Justice Roberts) wrote a 51-page dissent, arguing that the University’s justifications were neither compelling nor narrowly tailored. In particular, he believed that the University was defining diversity only in terms of numbers, ultimately equating to “racial balancing,” which the Bakke Court held is unconstitutional. “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’” Alito wrote, “without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.”
Those are the two sides of Fisher. Below we will address arguments against the majority opinion; tomorrow, we will offer a separate article in support of the majority opinion. Hopefully you will consider both sides before making your own decision. We invite you to read these articles (and to read the actual opinion) and to add your own views in the comments below.
David: The best way to understand any Court decision is to understand the framework through which the Court analyzes the question. Here, as explained above, the test is strict scrutiny, which involves 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? This is the most rigorous test the Supreme Court applies, and for good reason: strict scrutiny is often used to review laws that impinge upon fundamental rights and that deny citizens equal protection of the laws. So it should come as no surprise that states often have a difficult time prevailing under this framework.
Also important to understand is the burden of proof. “Burden of proof” is a legal term that means what it says: Who has the burden to prove the issue before the court? When it comes to strict scrutiny, the burden of proof is on the state actor. In other words, the state actor—not the person challenging the law—must prove both a compelling interest and narrow tailoring. This is a burden of producing arguments and evidence to support those arguments.
In the majority opinion, Justice Kennedy gave substantial deference to the University in proving its compelling interest. Although Kennedy admitted that, under strict scrutiny, the state actor must demonstrate its interest “with clarity,” throughout briefing and oral arguments the University never really offered a clear and consistent interest that it sought to advance. At times, it was achieving a “critical mass” of minority students (without explaining what a “critical mass” was), the amorphous concept of “promotion of cross-racial understanding,” or the more specific (but still vague and certainly not compelling) “robust exchange of ideas.” Remember that the burden is on the University to prove not only its interest (let’s say “racial diversity”) but also that the interest is compelling. The Supreme Court has never offered a bright-line rule for what constitutes a “compelling” state interest, so perhaps the best way to understand what “compelling interest” means is by comparison. Interests the Court has judged “compelling” include national security, health and safety, and not violating explicit constitutional protections. It seems, then, that an interest is “compelling” if it is necessary or crucial to a functioning society, as opposed to merely being preferred.
Furthermore, a “compelling” interest sits atop a hierarchy of interests that the Court has defined. So far, we have spoken about only one framework used by the Court in analyzing constitutional issues: strict scrutiny. However, there are less-intensive levels of scrutiny, so-called intermediate scrutiny and rational-basis scrutiny. (There are arguably other levels, but that would require an entirely different article.) It is not important now to know when these levels of scrutiny apply; only to know what they mean. Under intermediate scrutiny, the state actor must prove that the measure being challenged is (1) substantially related to (2) an important government interest. Under rational-basis scrutiny, the burden is only the challenger to prove that the challenged measure is not (1) legitimately related to (2) a legitimate government interest. Again, it’s not important to know how these tests apply. I simply want to illustrate that the Court actually spoke quite specifically when it required, under strict scrutiny, state actors to show a compelling government interest.
Is racial diversity in the university setting a compelling interest? I think it’s close. I would certainly agree that it is important; I just don’t know if it is compelling to the same level as national security or public health. However, the Bakke Court (affirmed in Grutter) held that it was a compelling interest. So while I believe the University did not carry its burden well, I think that it scraped by enough to satisfy the first component of strict-scrutiny analysis. My problem with the majority opinion comes from the second part of the analysis: Is the admissions program narrowly tailored to achieve the interest of diversity? Once again, the burden is on the University to prove narrow tailoring—it is not on the challenger. And I believe the University failed to carry that burden.
Narrow tailoring is a quaint legal phrase, but you may see the Court use other phrases in cases dealing with strict scrutiny. Sometimes the Court says the measure being challenged must be “necessary” to achieve a compelling state interest; sometimes it says the measure must use the “least restrictive means” to achieve that interest. Again, it helps to compare to other levels of scrutiny. Under intermediate scrutiny, the measure must be substantially related to the interest; under rational basis, the measure must be rationally related to the interest. “Narrowly tailored,” then, speaks to a very precise “fit” between the means and the end: The measure must actually achieve the compelling interest; and the means chosen to achieve that interest must not be overly broad. “Narrow tailoring” is still a vague and subjective standard, but hopefully these principles can at least give you an idea of what the Court is looking for.
One of the reasons Fisher I was remanded back to the Fifth Circuit was so that the University could show how the admissions program was narrowly tailored to achieve its asserted interest; in other words, the University failed to carry that burden the first time. As the Court (by a majority of 7 to 1) stated in its opinion remanding the case, narrow tailoring requires “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
Comparing the Fisher II opinion to the arguments asserted in the briefs, it’s clear that Justice Kennedy failed to make such a “careful” inquiry and instead tried to make arguments for the University that the University itself could not make with sufficient clarity to carry its burden the second go-around. He assessed the efficacy of the program by citing strange statistics such as the percentage of classes with at least five students that have at least one African American enrolled in the class. He then compared those numbers to somewhat-tangential demographics such as the total number of African Americans enrolled in the student body. These are statistical apples and oranges. While he later made an apt comparison of minority students admitted under the “holistic” review in 2003 and in 2007, the fact that the University has achieved some gains in diversity says nothing about whether the program is narrowly tailored. Moreover, as Justice Alito points out in footnote 14, the marginal effect of those gains is miniscule. And as both the University and Justice Kennedy acknowledge, there may be other reasons for those gains: the University has greatly expanded its outreach to minorities and has added numerous scholarship opportunities directed at minorities.
Important in all of this is to remember that the burden is on the University to prove that the program is narrowly tailored—not on the Petitioner to prove that it is not narrowly tailored. Justice Kennedy flipped the burden on its head (as is especially clear on pages 11–19 of his opinion). Even so, he also dismissed the fact that the Petitioner did offer a less-restrictive alternative: race-blind holistic review. While stating that the University had tried that method and had failed, neither he nor the University offered any support for that claim. I will say it one last time: the burden is on the University, and the University failed to carry its burden.
All of this is not to say that affirmative action is always unconstitutional. I believe there are compelling benefits to having a diverse student body. And perhaps there are other, more compelling interests that the University could have asserted. (Keep in mind, though, that the Court has held multiple times that affirmative action is not justified based on remedying past racial injustices.) But the law is not about what “could have” been; it is about what is. And in this case, the fact is that the majority opinion failed to properly apply strict scrutiny.
Jacob: As preface, I want to clarify that what follows is not an argument over merits of affirmative action as a policy; it is a legal analysis of this particular case. Good ideas do not necessarily translate into constitutionally justifiable policy. And in this instance, the policy at issue was not constitutionally justifiable. I agree with David that the majority misapplied the narrowly tailored requirement of strict scrutiny; better stated, the University did not carry its burden to prove that its admissions policy was narrowly tailored. But I believe the University did not even satisfy the first step in strict-scrutiny analysis—asserting a compelling interest—which means there is no need to each reach a narrow-tailoring analysis.
In the Equal Protection context, any law that utilizes race-based classifications receives strict-scrutiny review from courts. As David mentioned, this means that the burden is on the state actor to prove that (1) a compelling interest exists to justify the race-based policy, and that (2) the law is narrowly tailored to effectuate that interest. In this case, the University argued several interests, with the main one being the “educational benefits of diversity.” Setting aside for a moment the question of whether that interest is compelling, the University never gave concrete reasons to clarify that interest with enough specificity to move on to narrow tailoring. Furthermore, to judge whether this interest is being achieved, the University said that it would know the policy is working “when it ‘see[s] the educational benefits happening.’” Such a vague definition of the ends renders any court incapable of determining whether the narrow tailoring factor is met. This essentially hands all the power to university administrators: if the interest and goals of the policy are subject to change or are difficult to ascertain, it is nearly impossible for a court to identify when they have been met and whether the program passes constitutional muster. Critically, if the interest is broad and amorphous, it is impossible for the policy to be narrowly tailored as required by strict scrutiny; there is no limiting principle. What the University’s argument boils down to is saying “trust us, we know what we’re doing.” That has never been sufficient to survive strict scrutiny.
If this were any other, non-race-based policy, the interest asserted might be acceptable. But this not another policy; this is a race-based classification. As Justice Alito mentioned in his dissent, “[R]acial classifications are permitted only as a ‘last resort’ when all else has failed.” In a prior case, Justice Kennedy wrote that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” The University in this case is trying to justify discrimination on the basis of race with ambiguous notions of racial diversity. But even if it could have proved a concrete goal behind the diversity interest, it would not be sufficient to pass strict scrutiny. As noted above, there are three tiers of review in Equal Protection analysis: rational basis, intermediate scrutiny, and strict scrutiny. The details of the tests are not important, but which test applies in any given situation often determines the outcome of the case. For instance, if the Court applies rational basis, the government wins 99% of the time. If intermediate scrutiny applies, the government often loses. And if strict scrutiny applies, the government loses 99% of the time. This should give you some indication of how difficult it is for a state action to survive strict scrutiny.
So is racial diversity in education is a compelling interest? I am not saying it is not important as a social goal, nor commenting on the merits of reverse discrimination as a social construct. I am talking about “compelling” within the framework of the most demanding constitutional review that exists. I believe that there has not yet been an interest presented to the Court that is compelling enough to justify a race-based law, allowing the government to treat citizens differently under the law based on race. I agree with Justice Thomas (yes, you heard me: I agree with Justice Thomas) when he wrote, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.” Justice Kennedy has even gone so far as to state that “judicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.’”
As a final note, compare racial diversity in education to some compelling interests that have been accepted by the Court: national security, public health, public safety and security, etc. Still convinced that diversity in education is an interest compelling enough to overcome a history of striking down racially based laws? I’m not convinced. The University’s policy confers benefits and burdens disproportionally based on a person’s race, even if it does so to promote diversity in education. That interest not compelling enough to justify intentional racial discrimination by the government and conflicts with the Court’s history of rendering race-based laws unconstitutional. For that reason alone, the majority reached the wrong conclusion.
Click here for Part Two of our series covering Fisher v. University of Texas.