Monday, December 30, 2013

New Rules for Affirmative Action? Oral Arguments at the Fifth Circuit Suggest So by Scott Greytak

Just last month, the Fifth Circuit Court of Appeals held a new round of oral arguments regarding Abigail Fisher’s ongoing claim that the University of Texas at Austin (“UT”) rejected her because she is white. Fisher first sued UT some five years ago after failing to gain admission through either the State of Texas’s Top Ten Percent plan – which automatically admits any high school student who graduates in the top ten percent of his or her class – or through UT’s regular, race-conscious admissions scheme, a “check the box” admissions scheme that, in both theory and practice, is comparable to hundreds of other admissions plans across the country.

This round of oral arguments came on the heels of the U.S. Supreme Court’s borderline unpredictable ruling this past June in Fisher. In a decision that saved diversity advocates from chewing their fingernails to the bone, the Court held that educational diversity remained a worthwhile, compelling state interest. However,the Court also held that the Fifth Circuit had misapplied the particular rule used by the Court to evaluate race-conscious admissions plans – “strict scrutiny” – as introduced by the Court some ten years ago in the case Grutter v. Bollinger.

As a result, the Court threw out the Fifth Circuit’s original decision, and shipped the Fisher case back to Austin, Texas, asking the Fifth Circuit to determine – and they really mean it this time – whether UT’s race-conscious policies are “narrowly tailored” (and necessary) to produce a “critical mass” of minority students. Lastly, and most headline-worthy, the Court’s opinion in Fisher stated that strict scrutiny requires universities to “demonstrate, before turning toracial classifications, that available, workable race-neutral alternatives” – alternatives like the Top Ten Percent plan in Texas – “do not suffice.”

Most commentators and experts examining Fisher have focused mostly on the first part of this decision, the part that unquestionably preserves the legality of race-conscious plans in college admissions. Yet far greater uncertainty has clouded whether – or rather, to what extent – the Court’s fixation on the latter, “narrowly tailored” part of the equation has in fact created completely new rules for affirmative action in higher education.

Those of us most concerned with this possibility have so far confined our suspicions to private phone conversations, tersely supportive emails, and off-the-political-radar panels and events on affirmative action. We carved out space in trade journals, salivated over the possibility of being validated by influential organizations, and came to exhibit uncharacteristically conspiratorial behavior. Terms like “institutional bias” and “government credibility” crept into our lexicon.

But when the Fifth Circuit reheard Fisher on November 13th, our concerns finally went mainstream. Arcade Fire had “The Suburbs.” We had Patrick Higginbotham.

Late in the hearing, amidst a blizzard of criticism from Bert Rein – the attorney for Ms. Fisher – Judge Higginbotham slowed the exchange, and wondered aloud

What is the unfairness of letting [UT] go forward under the [Fisher] standard? We obviously – the district court and this court – were seriously mistaken in not following the dissent in Grutter, by not having anticipated that it would become [the rule]. Going forward, in fairness perhaps, [UT] ought to be allowed to meet the standard [in Fisher]. One can say, ‘Well that’s always the standard.’ Well, of course strict scrutiny was always the standard, but it was strict scrutiny as stated by Justice O’Connor [and] to which Justice Kennedy dissented [in Grutter.]

Now while legal experts know better than to hitch their predictive wagons to the jurisprudential Frankensteins that happen to catch an occasional lightning bolt at oral arguments, Judge Higginbotham’s recap of Fisher is exceptionally telling, if not foreboding. After all, Higginbotham is talking about fairness: the majority opinion in Grutter, written by Justice Sandra Day O’Connor, had provided lower courts with the exclusive blueprint for evaluating affirmative action cases for the last ten years, to such an extent that when Ms. Fisher first sued UT, Grutter wasn’t just the gold standard, it was the standard. But then, through the Fisher decision, Justice Kennedy’s dissenting opinion from Grutter silently grew to “become” the new blueprint. Who knew? And wouldn’t it be unfair to hold the university to this unforeseen set of rules? As Higginbotham pointed out, not even the Fifth Circuit had “anticipat[ed]” this transformation.

Whether the Fisher Court really did change the affirmative action blueprint is likely to serve as the decisive factor for the Fifth Circuit: If the court believes that Fisher changed the rules, it will likely send the caseback to a district court for a trial, wherein UT can present new evidence demonstrating the necessity of its race-conscious admissions plan. But if it determines that Justice O’Connor and Justice Kennedy were in fact singing the same tune all along, from Grutter to Fisher, the court will probably take a swing at the case itself. And as UT’s president related after the rehearing, a ruling against the university would be “a setback to diversity, not just at the University of Texas, but at universities across the country.”

Scott Greytak is an associate with Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.

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