Tuesday, February 21, 2012
In a case that might be called the sequel to Grutter v. Bollinger, the United States Supreme Court granted certiorari today in Fisher v. University of Texas, a suit by a white woman challenging the post-Grutter admission plan at UT. (Justice Kagan recused). [Update: There's a terrific explanation of the procedural problems with the case, including Art III standing issues, by Adam Chandler].
The dissenting opinion to the denial of en banc review by the Fifth Circuit, authored by the high profile conservative Chief Judge Edith Jones, sets out the arguments against the panel's opinion, 631 F.3d 213, upholding the UT plan, arguing that the panel extends Grutter in three ways.
- First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring.
- Second, it authorizes the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.
- Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious policy.
Jones continues, arguing that the meaning of "diversity" is less than coherent:
This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program. The state’s Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a “community” is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East “Asians” is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas’s major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their “benign” use of race in admissions.
Jones later states,
The effect of the panel’s wholesale deference becomes clear when one considers the important factual distinction between this case and Grutter. In Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of the entering freshman class were subject to a race-conscious admissions process to increase diversity. As Judge Garza’s concurrence demonstrates, the number of students actually admitted under this racial preference policy is unclear, but it amounted to no more than a couple hundred out of more than six thousand new students. . . . The panel opinion asserts that the University’s admission process is constitutionally acceptable because it is modeled closely after Grutter. Yet the difference is obvious. The Texas legislature statutorily mandated increased diversity in admissions by means of the Top Ten Percent Law. Under that race- neutral law, covering 80% of University admissions, the top ten percent of graduates from every Texas high school were automatically admitted, and many African-American and Hispanic students matriculated to the University. The challenged preferential policy was adopted on top of the unprecedentedly high numbers (compared to many other universities) of preferred minorities entering under the Top Ten Percent Law.
The pertinent question is thus whether a race-conscious admissions policy adopted in this context is narrowly tailored to achieve the University’s goal of increasing “diversity” on the campus. Contrary to the panel’s exercise of deference, the Supreme Court holds that racial classifications are especially arbitrary when used to achieve only minimal impact on enrollment.
. . . Finally, in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level—in a university that offers thousands of courses in multiple undergraduate schools and majors—justifies enhanced race-conscious admissions.
While Justice O'Connor ended the Court's opinion in Grutter with an expectation that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," it seems that Grutter will be revisited less than a decade later - - - and with O'Connor no longer on the Court and Kagan recused.