By Edward Blum
As the saying goes, "fuzzy law begets controversy", and nothing has proven this maxim better than the Supreme Court's 2003 landmark ruling on "diversity" in higher education. Lacking clarity, the ruling has left individual institutions to interpret how to achieve diversity on their campuses, stoking never-ending conflict over race and admissions. However, a new lawsuit from Texas that is working its way up the appellate ladder---the New Orleans-based 5th Circuit Court of Appeals took the case this week--- may compel the justices to clarify---and limit---how race and ethnicity may be used in the admissions process.
Some background is in order. Six years ago, the high court handed down a decision from a University of Michigan case that addressed the use of race as a factor in university admissions. In Grutter v. Bollinger, a challenge to Michigan's law school admissions practices, the justices ended a debate that had bedeviled college administrators for decades by permitting institutions of higher education to employ racial and ethnic preferences in order to create a "diverse" student body.
The Grutter opinion was significant in that it held that the creation of a racially diverse student body was so beneficial to the educational experience of everyone that there was a "compelling state interest" to lower the admissions bar for some applicants, and raise it for others.
Still, the justices were careful to underscore that the opinion was not a blanket endorsement of the use of race. An institution bears a heavy burden, they wrote, when it injects race into the admissions equation and any consideration of race must be carefully structured---or, in the language of the law, "narrowly tailored." Yet the justices did not fully spell out the differences between a shotgun and a careful, targeted approach in using racial preferences. This is where the opinion gets fuzzy---and "fuzzy" is being charitable.
In any event, the opinion unequivocally specifies that narrow tailoring requires that, before putting a thumb on the race scales, a school must pursue a "serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity [it] seeks."
How much, or how little, serious consideration of race-neutral alternatives must be made is undefined, which has allowed college administrators to operate unrestrained when it comes to their school's race preferences. Even the president of the Association of American Law Schools noted in a recent law review article that most "colleges and universities have not paid as much attention to this part of the Grutter opinion."
The recent lawsuit from Texas---Fisher v. University of Texas---may finally compel universities to actually implement a variety of race-neutral admission alternatives just as the high court specified.
The facts in Fisher seem tailor-made for such a legal outcome. Here's why: In 1996, the Fifth Circuit Court of Appeals outlawed the consideration of race and ethnicity in admissions by any Texas college or university. In response to the sudden (but unsurprising) drop-off in minority enrollment at the University of Texas-Austin and Texas A&M, the legislature passed, and then-Governor George W. Bush signed, the "Top 10 Percent" law. This law allowed any student graduating in the top 10 percent of his high school class to attend any public school in the state.
Within a few years, minority enrollment (as well enrollment from rural areas) at the state's flagship universities surged, surpassing minority enrollment levels achieved with race-based affirmative action. So successful had the plan been in attracting minorities to UT-Austin, that then-university president Larry Faulkner penned a celebratory essay in 2000 extolling the plan's results. His essay notes:
. . . the Top 10 Percent Law has enabled us to diversify enrollment at UT Austin with talented students who succeed. Our 1999 enrollment levels for African American and Hispanic freshmen have returned to those of 1996, the year before the [Fifth Circuit] decision prohibited the consideration of race in admissions policies. And minority students earned higher grade point averages last year than in 1996 and have higher retention rates . . . . So, the law is helping us to create a more representative student body and enroll students who perform well academically.
The Top 10 Percent law has its critics, but one thing is certain: it is a proven race-neutral admissions policy that has produced greater "diversity" at UT-Austin than did race-based affirmative action.
Nevertheless, UT's satisfaction with the Top 10 Percent law was short-lived. On the same day that the Michigan case came down from the Supreme Court in 2003 (thus, overturning the earlier ban imposed by the Fifth Circuit), President Faulkner issued a press release announcing UT-Austin's intent to reintroduce race-based affirmative action.
The Fisher plaintiffs, two high-achieving girls who graduated in the top 11th and 12th percentile of their high school classes, argue that but for the reintroduction of race by UT-Austin, they would have been admitted. They assert that the Top 10 Percent plan is exactly the kind of "race neutral" alternative the Supreme Court highlighted in the Michigan case. Since this legislatively-mandated plan has produced greater diversity than did race-based affirmative action, they argue, UT-Austin is breaking the law's "narrow tailoring" mandate.
Last month, a district court judge in Austin disagreed, so now the case is on appeal. Regardless of the outcome at the next stage, many legal observers believe the case will eventually be heard by the Supreme Court.
The prospects for the plaintiffs at the high court look promising. Justice O'Connor, the author of Grutter, has been replaced by the more conservative Justice Alito. Justice Kennedy, the swing vote today on many high-profile, hot-button cases, dissented in Grutter and it is not unreasonable to expect him to look at UT-Austin's reintroduction of race preferences with a good degree of skepticism. As well he should.
There is a lot riding on this case for administrators at highly competitive schools throughout the country. If the University of Texas is required to rely on the successful, race-neutral, Top 10 Percent plan instead of affirmative action to achieve student body diversity, it may obligate other schools to experiment with different kinds of non-racial alternatives---or face litigation themselves.
Like it or not, race-based affirmative action in university admissions was given a green light, albeit a dim one, by the Supreme Court in 2003. Yet, the justices were mindful to tether them to race-neutral alternatives. If UT-Austin's reintroduction of race preferences is permissible, then the race-neutrality doctrine means nothing. It's now up to the courts to put some teeth into their opinion.
Edward Blum is a visiting fellow at the American Enterprise Institute. He is also the director of the Project on Fair Representation which is helping provide counsel to the plaintiffs.