Wednesday, August 22, 2012

Fisher and the Future of Affirmative Action

By Mike Dorf

On October 10, the Supreme Court will hear oral argument in Fisher v. University of Texas.  Judging by the volume of amicus briefs the Court has received, the case could be a blockbuster.  (For links to the amicus briefs and other documents in the case, click here.)  Or at the very least, we know that a lot of people and organizations think so.  I'm one of those people, working (pro bono) for one of those organizations.  Very ably aided by the students in the Stanford Law School Supreme Court Litigation Clinic, Pam Karlan, Jeff Fisher, Kevin Russell, Tom Goldstein, and I have written and filed a brief on behalf of the Association of American Law Schools.  (Pam and I also wrote the AALS amicus brief in Grutter v. Bollinger.)

Below, I'll set forth the core of our brief's argument, but first I want to note how, in the course of working on it, I came to see this case as much more significant than I originally comprehended.  When the Court granted cert earlier this year, I thought the case would present the relatively narrow question of whether a university that admits substantial numbers of minority students through a mechanical rule could "top off" its admissions process by adding an expressly race-based component.  As I explained in a Verdict column at the time, the University of Texas guarantees admission to all students in the state who place in the top ten percent of their respective graduating high school classes.  But because most states and private universities do not overlay their race-conscious admissions process on a percentage plan, I assumed that whatever the Court decided would have little general impact.

I now think otherwise.  Suppose the Court holds that UT was not permitted to use race-conscious measures to boost minority enrollment because of the efficacy of the ten-percent plan.  Such a holding would fit into the existing jurisprudence at the "narrow tailoring" prong of strict scrutiny.  The Court would be saying that race-neutral means are available so race-conscious ones are impermissible.  But that would entail the principle that anywhere that a percentage plan could be used to achieve some diversity, it must be used instead of race-conscious measures.

If the Court were to rule along those lines, the next battle would be over determining where percentage plans (or other mechanical rules) are feasible.  For reasons we explain in our brief, law schools should fall outside of the category of institutions required to use percentage plans, but we also argue that no institution of higher education should be required to go to a mechanical admissions system.  Among other things, such a requirement would pretty clearly be inconsistent with Justice Powell's controlling opinion in the Bakke case, which the Grutter Court (including Justice Kennedy on this point) accepted.

Here is the Summary of the Argument from our brief:
Although the University of Texas achieves some measure of racial diversity in its undergraduate student body through the nominally race-neutral means of a mechanical admissions formula, this Court should resist any temptation to announce a general rule foreclosing the use of race as one factor in a holistic admissions process.  Such a rule would be counter-productive in many settings, especially law school admissions.  In the law school context, a requirement of a mechanical admissions formula would be wildly impracticable, would not produce substantial racial diversity, and would undermine the ability of law schools to admit classes that are diverse along other dimensions.  
Typical law school class sizes are more than an order of magnitude smaller than the class size of large public universities, and law schools draw their students from a wide range of undergraduate institutions.  Guaranteeing admission to any percentage of the graduates of those institutions would result in vastly over-subscribed law school classes, even as it would exclude many better qualified applicants.  
To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage.  Instead, following this Court’s guidance in  Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome.  A mechanical admissions process would render such criteria irrelevant. 
Moreover, a mechanical admissions process would undermine, rather than foster, racial diversity.  The Texas Ten-Percent Plan produces some measure of racial diversity because it draws students from a secondary education system that exhibits a high degree of de facto segregation.  The top ten percent of a virtually all-Latino school will be nearly all Latino.   But with law schools drawing most of their applicants from integrated undergraduate institutions, the use of a mechanical admissions procedure would lead to fewer minority admissions because of persistent racial gaps in test scores.  
Given the role law schools play in training our national, state and local leaders, a requirement that institutions of higher education use nominally raceneutral application procedures would undermine the ability of law schools to build racially diverse classes and hamstring the ability of law schools to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.”  Grutter, 539 U.S. at 332. Whatever the merits of the Texas Ten-Percent Plan in the context of a large public university, restricting law schools to using mechanical admissions standards would be devastating.


Doug said...

Would it not be better to spend the time and attention fixing the root causes? Shitty schools in minority-heavy areas that have a fraction of the funding of good schools along with poor policing, welfare, and other government services. Fix these and the need for race-conscious measures would be needed far less.

Doug said...
This comment has been removed by the author.
Paul Scott said...

That is part of my problem with AA as well.

We start with a facially immoral program, but one that is none-the-less justified as remedial to an otherwise difficult to overcome power structure.

AA should have been a short-term remedial action and has become an institution. AA may (or may not) still be necessary, but I think it is incumbent upon its supports to:

1. establish its current necessity (I actually suspect this would not be challenging);
2. establish a plan to cure the underlying problem; and
3. set forth recognizable, testable criteria for when it can be eliminated or phased out.

As I see it today, it is just an institution with the primary goal of self-perpetuation. If that is all it can be, then we should get rid of it.

Joe said...

Property tax focused school funding was targeted but fixing root causes is a hard job. When you have a faulty roof, do you always have the wherewithal to pay to build a new one? Or, do you patch it up, a short term solution, but the only one realistically possible given your opportunities at the moment?

Anyway, AA is but one method used to addressed the problem. As to phase out, realistically how long would that be? We deal with hundreds of years of discrimination that continues to be ongoing.

Justin said...

It seems like the easiest, and most obvious, approach is that the Equal Protection Clause of the 14th Amendment was not intended to protect the majority from disadvantaged minorities; that's what we have the political process for. At most, such forms of discrimination should be subject to a rational-basis test.

But I think this position has somewhere between 0 to 1 vote in support amongst the current Supreme Court, so, alas.

The Dismal Political Economist said...

I understand the legal arguments but what I don't understand is why anyone would expect valid legal arguments to prevail in a case that has in all effect already been decided.

This case will result in an opinion that is broadly based and bans all consideration of race in college admissions.

This is not because of the law, it is because of the political positions of at least five Justices.

Paul Scott said...

I think you are probably correct, but then I thought the same thing about Obamacare. Either way, I certainly agree with you that when it comes to SCOTUS legal arguments are just cover.

That said, I am interested in the policy issues that surround AA even if the legal arguments no longer hold much interest for me.

Joe said...

TDPE, Kennedy in Parents Involved rejected a rule (resulting in no majority on the point) that "all consideration of race" could not occur in school placement.

The 10% plan surely involved some "consideration of race," e.g., and I think it more reasonable there to say he would oppose use of race in specific pupil placement.

Anyway, the debate is what the law is and sure five justices lean a certain way. The same might apply if someone wanted to debate the death penalty for those under 18 or some such thing where five justices have a more liberal leaning.

Dewaite Houwad said...
1. establish its current necessity (I actually suspect this would not be challenging);
2. establish a plan to cure the underlying problem; and
3. set forth recognizable, testable criteria for when it can be eliminated or phased out.

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