Monday, January 24, 2011
A three-judge panel of the Fifth Circuit last week upheld the affirmative action plan used by the University of Texas for its undergraduate admissions. The panel ruled in Fisher v. University of Texas that the plan was modeled on the plan that the Supreme Court upheld in Grutter v. Bollinger--that it used race as only one factor and that it looked at applications as a whole in order to achieve the educational benefits of diversity at the school. The plan thus satisfied strict scrutiny.
UT has a two-part admission policy. First, the school automatically admits Texas seniors in the top 10% of their high school graduating class. Next, for all others UT uses an index based upon two required essays and a "personal achievement score," which represents an evaluation of the applicant's entire file (including, among many other factors, race).
Only the second part was at issue in the case. But the panel ruled that the second part met the standard under Grutter. The panel first rejected the appellants' argument that it should apply a "strong basis in evidence" standard. That standard, the panel ruled, was appropriate for backward-looking employment decisions to remedy past wrongs, but not for forward-looking, holistic educational decisions to enhance diversity:
The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration. In doing so, it touches the third rail of racial quotas. Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city's use of race threatened to devolve into a de facto quota.
By contrast, Grutter recognized that universities are engaged in a different enterprise. Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.
Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding. When scrutinizing two school districts' race-conscious busin plans, the Court invoked Grutter's "serious, good faith consideration" standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.
Op. at 31.
The panel, looking closely at the numbers, also rejected the appellants' arguments that the plan amounted to racial balancing and that UT did more than necessary to achieve a critical mass for diversity. (The panel noted that the first part of the policy, the 10% rule, was "at best a blunt tool for securing the educational benefits that diversity is intended to achieve"--that it alone wasn't doing the job and therefore wasn't an adequate, alternative, race-neutral way of obtaining critical mass, as appellants argued.)
Judge Emilio Garza issued a sharp and lengthy special concurrence, agreeing with the result under Grutter, but strongly disagreeing with Grutter. Here's a taste:
My disagreement with Grutter is more fundamental, however. Grutter's failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all.
The idea of dividing people along racial lines is artificial and antiquated. Human beings are not divisible biologically into any set number of races. A world war was fought over such principles. Each individual is unique. And yet, in 2010, governmental decisionmakers are still fixated on dividing people into white, black, Hispanic, and other arbitrary subdivisions. . . .
When government divides citizens by race, matters are different. Government-sponsored discrimination is repugnant to the notion of human equality and is more than the Constitution can bear.
Op. at 83-84.