Tuesday, November 5, 2013
DOJ Supports Texas Affirmative Action Plan on Remand and Argues Texas Still Entitled to Deference Regarding the Existence of Critical Mass
The Department of Justice filed its amicus brief in the remand in Fisher v. Texas last week. The key question on remand is whether the University of Texas's consideration of race in admissions is necessary. Bound up in that question the first time around was the level of deference that a court should afford a University in reviewing its admissions policies. The Department of Justice argues in its brief that, while the Supreme Court indicated that the lower court must independently review whether the admissions policy is narrowly tailored, the University is still entitled to "due regard" of its educational goals and how the consideration of race furthers them. In particular, the University is still entitled to a level of deference in terms of what constitutes a "critical mass" of minority students necessary to achieve the benefits of diversity. The pertinent part of DOJ's brief states:
In this supplemental brief, the United States will address the Court’s question whether “the University [is] due any deference in its decision that ‘critical mass’ has not been achieved.” Grutter used the term “critical mass” as shorthand for the point at which a university has attained sufficient diversity to achieve the educational benefits of diversity. 539 U.S. at 330. The question for this Court is therefore how it should review the University’s conclusion that it lacked sufficient diversity in 2004 and 2008 to provide the educational benefits of diversity to its students. That question entails a qualitative assessment of the educational experience the University is providing, rather than, as appellant suggests (Appellant Supp. Br. 23-24), a rote calculation of the number of minority students enrolled in the University, a number that might seem “substantial” in the abstract.
This Court should independently review the University’s determination that it lacks sufficient diversity to fully provide the educational benefits of diversity, while giving due regard to the University’s exercise of its educational judgment and expertise in reaching its conclusion. The determination that the University lacks sufficient diversity is a necessary predicate for its ultimate conclusion that it is “‘necessary’ * * * to use race to achieve the educational benefits of diversity.” Fisher, 133 S. Ct. at 2420. Because the University bears the “ultimate burden” on that question, ibid., the Court must be able to meaningfully review the University’s conclusion that it currently lacks sufficient diversity to fully provide the educational benefits of diversity. The Court should therefore verify that the University has amply supported its conclusion with concrete evidence and a reasoned explanation of why that evidence indicates that the University is not providing the educational benefits of diversity. At the same time, because the University’s assessment of such evidence rests on the application of educational expertise and judgments about the University’s institutional mission, this Court should evaluate the University’s conclusions with due regard for the multi-faceted educational assessments underlying those conclusions.
DOJ's full brief is here.