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.