A view from inside the SCOTUS: The affirmative action decision explained


By Cara L. Gallagher, weekend contributor

In the first line of his 51-page dissent in Fisher v. The University of Texas at Austin, Justice Alito wrote that “something strange is going on at the Supreme Court.” Indeed, it was. I think it’s safe to say no one thought race-based admissions processes would survive after the first Fisher case in 2013. The four conservative Justices (Scalia included) have long been chomping at the bit to quash it, believing instead that the way to end race-based discrimination is to “stop discriminating on the basis of their race.” Universities have no less continued to try different ways to diversify campuses but have ostensibly been told by the SCOTUS: You’re doing it wrong.

Certainly Justice Kennedy, who authored the 4-person majority opinion in Fisher last week, seemed poised to tell the University of Texas at Austin they too were doing it wrong. He all but said as much in Fisher I in which the Court gave UT a second chance to prove the use of race was necessary to diversify their campus. It was a finger-wagging opinion if ever there was one, with explicit instructions that UT had to pass what’s known as the “strict scrutiny” test. This standard is required in order for public universities to consider the race of its applicants. The UT had the burden of proving they’d met the strict scrutiny standard by demonstrating “no workable race-neutral alternatives would produce the educational benefits of diversity.” In Fisher I, Kennedy criticized the lower court’s ruling saying it couldn’t simply give UT the benefit of the doubt and had to closely examine how the process worked in practice.

Fisher went back to the university in 2014, who kept the question about race on the application, and it returned to the 5th Circuit Court of Appeals which, once again, gave the UT’s race-based admissions policies the “OK.”

Last June, the Supreme Court agreed to hear Fisher again sending a clear message that there were at least four justices looking to hear Abigail Fisher’s appeal in order to deal a final blow to affirmative action. During oral arguments in December, Kennedy, seemingly frustrated with the University’s unchanged policies, said to its lawyer “it’s as if nothing happened.” By the end of arguments, I was sure Kennedy had joined the four conservatives and affirmative action could be pronounced dead that day.

But last week, Justice Kennedy, writing for the four-person majority in Fisher II, resuscitated it. His unexpected opinion, which took only a few minutes to read in Court, said the university had met its burden, Abigail Fisher was not denied equal treatment, and the use of race in their holistic admissions process was necessary to further diversify UT’s student body.

The takeaways from his opinion reveal a few things we’ve always known about him and one or two new things about Kennedy. First, as we’ve known, he is as mercurial and swing-y as always. The man you knew would write the poetic justice opinion in Obergefell last summer, after the DOMA decision two years prior, is not always that predictable. Second, he still holds the power of being the decisive vote. With Scalia gone and Kagan recused, this case was the only one immune to any potential 4-4 tie scenario, making his vote conclusive. What’s new is that we learned what a data junkie Kennedy is.

Here’s a rundown of how he came to his decision:

First, as Kennedy did accept in Grutter, the UT does have a compelling need to use race as a factor in their holistic admissions process in order to achieve a critical mass of diverse students. “Rather, a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow from student body diversity.’” But creating a critical mass isn’t something that can be prescribed with an exact number because doing so would give the appearance of saving seats or meeting quotas, which the Court said ‘no’ to in the 1978 Bakke case.

What can be quantified, however, are the ways in which a school measures the diversity of its students and the efficacy of its admissions recruitment programs. Kennedy points to numerous ways in which the UT did this, namely a “a year-long study, which concluded the use of race-neutral policies and programs had not been successful in providing an educational setting that fosters cross-racial understanding, providing enlightened discussion and learning, or preparing students to function in an increasingly diverse workforce and society.”

Demographic data pointed out “consistent stagnation” in terms of the percentage of minority students enrolling at the university from 1992 to 2002. Further reports revealed that although minority enrollment had increased in small amounts over those years, diversity wasn’t flowing from the quad into the classrooms and labs, and thus more students of color were needed. [“Only 21% of undergraduate classes had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students.”]

Fisher’s argument was that the use of race in the holistic process is unnecessary because TTPP is already a race-neutral plan that brings in significant numbers of minority students from schools whose populations are dominated by black and Hispanic students. This argument was challenged by Kennedy who pointed out TTPP isn’t race-neutral, and “cannot be understood apart from its basic purpose, which is to boost minority enrollment.” He relied upon Justice Ginsburg’s dissent in Fisher I to remind us that, in Texas, “Percentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage.’” “It is race consciousness, not blindness to race, that drives such plans.” Further, over the past decade, minority enrollment through TTPP has languished while the holistic method has helped increase the numbers of minorities admitted. For instance, African-American students admitted went from 3.5% in 2003 to 6.8% in 2007. Hispanic students, 11% in 2003 to 16.9% in 2007.

Fisher suggested that there are numerous other available race-neutral ways of achieving diversity like intensifying outreach efforts to black and Hispanic students. According to Kennedy, UT did that and opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events. But, as he said, “None of these efforts succeeded.”

Lastly, Fisher’s proposal to lift the cap of automatic admittance from the top ten to the top fifteen percent – which would’ve helped her as she was in the top 12% of her class – wasn’t possible because the University has no power to change state policy. Furthermore, focusing only on one criteria (GPA) would be a limited way of creating a student body. Such a system “would exclude the star athlete or musician whose grades suffered because of daily practices and training” “[the] talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.”

Proponents of affirmative action can put Fisher II down as a win. However, Kennedy’s opinion isn’t a one-size-fits-all decision that can be used the next time an affirmative action case comes up. A thin (4) majority joined Kennedy’s opinion emboldening the point that this case was truly sui generis, or unique to Texas and thus not applicable to Michigan, North Carolina-Chapel Hill (where Fisher’s legal team is directing their next affirmative action case), Illinois, Georgia, etc. Not unless the school happens to be in a state like Texas that has a very distinct piece of legislation like the Top Ten Percent Plan.

The TTP Plan works in Texas only insofar as it fits the structural makeup of minority communities, which tend to be set against the backdrop of racial segregation. Most secondary schools in the Houston and Dallas metropolitan areas are segregated, many of which are majority-minority schools populated almost exclusively by students of color. Relying on these divisions, the legislature and governor used them as a race-neutral way of diversifying UT by automatically admitting ten percent of each class.

Now that Fisher II has been decided, it’s not the only way UT can diversify its campus.

Follow Cara on Twitter @SupremeBystandr.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

10 thoughts on “A view from inside the SCOTUS: The affirmative action decision explained”

  1. I personally like having well-educated, intelligent individuals on the SCOTUS.

  2. GHSTEELE – Sounds good to me.

    If you didn’t get through his comment, TLDR- here it is: BASE THINGS ON MERIT.

  3. There is an underlying assumption about race that is never really mentioned when talking about affirmative action. It is the assumption that the reason for lower percentage of one race’s applications to College or University is due to racial prejudice. It may not be.

    There are differences between races. I am familiar with the distribution of IQ across the world. Of course you are invited to fact check. Sub-Saharan Africa is the lowest at about 70. East Asia is the highest with Hong Kong checking in at 108 and the rest about 105. Iran, Saudi Arabia, Iraq, and Lebanon center around 85. European 100 (that is where it was invented so it is the “standard.”). Israel around 100 (raised from the expected 85 in other Semitic races due to the Ashkenazim with 115). Whites in the US about 99. Blacks in the US about 85. Hispanics in the US about 90.

    When there is a non-race-aware admission policy, the Asians and Ashkenazi Jews will be over-represented when compared with their percentage of the population. (I was in the 40th percentile on my math GRE. I was told that was great for a white guy; a credit to my race. Asians dominate the math GRE while Ashkenazim dominate the verbal.)

    With non-race-aware policies Blacks dominate sports. With non-race-aware policies Blacks will be over-represented on the welfare roles and this should be no surprise.

    There is a subtle difference between recognizing the differences and judging all individuals by their group. There are stupid Ashkenazim. There are brilliant Blacks.

    ______ Off topic

    There are IQ differences between men and women. Although the averages for both men and women of a given race are the same the bell curve is shaped differently. The men’s curve is flatter. The women’s curve is fairly sharp. There are more stupid men than women and more brilliant men than women. We should expect that the best at anything in which intelligence is a significant factor to be male. The best lawyer. The best judge. The best physicist. We should expect the worst at anything in which intelligence is a significant factor to be male as well.

    The race, sex, gender (sexual orientation), marital status, religion, age, or any other grouping should be immaterial to the standards for admission to college. I don’t care if a firefighter is male or female as long as they have both passed the same tests for admission. I don’t care if my pilot is male or female as long as they have both passed the same requirements.

    ___ On topic

    Suggestion: Make no law recognizing any group for preferential treatment. Judging by group identity is reasonable as a member of society. It is a pre-judgment we all make. (He’s a Catholic, so… or She’s a cheerleader, so… or He’s a nerd, so…) It is the starting point. (You know your author is a retired professor, so…)
    The standards for laws, regulations and policies should allow judging the individual by any means possible to determine their qualifications. In a job requiring quick-thinking a test for quick-thinking seems reasonable. In a job requiring accurate-thinking a test for accurate-thinking seems reasonable. If a job requires producing written work a test for writing skill seems reasonable.

    Giving IQ tests to prospective employees is forbidden. It leads to de facto discrimination. Blacks have (as a group) lower IQ’s and so, as a group, seem under represented. This is due to the assumption that the races are the same except for color. They are not. The Army gives an IQ test to determine who might be eligible for Officer schooling; private employers may not do the same.

    Reverse discrimination, affirmative action, was a problem. In the mid–1960s we had to turn away 80% of the applicants to our computer science graduate school program. We used, among other things, GPA. One school gave black students an extra .5 in their reported GPA. We had a student report their GPA as 4.5. (on a 4 point scale). Of course we admitted her. But how about those with a 3.8 (which was one requirement)? We couldn’t trust the number and had to drop GPA and simply use GRE (Graduate Records Exam) scores. (Trivia: We found the verbal score was a better predictor of success at computer science than math score. Go figure.)

    Group identities are problematic. It is right to profile! It is the best first approximation. It is also right to change you first approximation upon further data. The TSA should be manned by trained body language experts. There should be a choke point (single file). People age 17 to 40 account for the vast majority of terrorists. TSA agents feeling up a child, or forcing a grandma in a wheelchair to get out of said chair so it can be inspected for bombs is ridiculous, but the TSA agents of today are not allowed to use judgment. RIghtly so for those who are there today. The perpetrators of 9/11 accomplished their mission. We now have the expense of the TSA. We overreacted. We pay with intrusions by government into our private lives (NSA thinks it is Big Brother). Intrusions which provide a little temporary safety at the cost of a lot of freedom. It is not “airline passengers” as a group that should be subject to deep scrutiny at airports. Wouldn’t it be nice if there were armed agents really good at reading people at every airport? Wouldn’t it be nice if airports were not gun-free zones and thus soft targets at the airport itself?

    Affirmative Action is destructive.
    Those of a favored race who would have qualified anyway are now a member of a group which is pre-judged (profiled) as probably not really earning their so-called degree.
    When college admission standards are lowered, guess what, the reputation of _all_ graduates from that school are affected. When all students “pass” 8th grade without having learned the material, having an 8th grade education is meaningless. When all students can get into college, having attended college becomes meaningless. When anyone can get some kind of degree, having a degree becomes meaningless.

    Helping Adults who don’t need help hurts them.
    Helping Children who don’t need help is babying.

    We have raised a generation of dependents. Children who cry at words and tattle. Children who don’t leave home. (Since when is that an option?) Boys made to behave like little girls by ADHD drugs in grade school. Young men who love’m and leave’m to raise the child alone. Grandchildren without fathers. That’s wrong, somehow.

    If you got this far, please comment,

  4. The accusation of East coast, Harvard-Yale is so inaccurate. There is not only an East coast Columbia Law Justice, I happen to know they seriously considered an appointment from Stanford or Cal-Berkeley Law! How’s that for big time diversity?

    Over the past half-century the Supreme Court has evolved into an elitist organisation with few ties to reality. Vanilla ideologues, phony left wing quasi-Bolsheviks, anything except someone interesting or with a foot in reality. O’ Connor slipped through 40+ yrs ago & she had some involvement in politics, but other than that how long has it been since someone who knew a regular person, other than their housekeeper, was on the Court? Souter? We still don’t know what the deal was with him? Thomas? The left smeared him for the rest of his life. Kagan & Sotomayor? Ha! Again people with obfuscated personal lives. Taking a partner from the DC office of a huge law firm (Roberts) is what now comes off as an “average guy”.

    I’d like to take two conservatives & two liberals off the Court and replace them with former pols or folks who have had jobs. Black, Murphy, Warren, Douglas, Jackson, Rutledge, etc., etc., were pretty good choices. We could use some true diversity on a Court where a woman who attended SMU Law wasn’t good enough for their exalted positions.

  5. Good article on the blog. Thank you Cara. We need more intelligent articles like this.

  6. I never liked Lucky Charms and wouldn’t buy them for our kids. The junk cereal I would let them have for a treat was Capn’ Crunch.

  7. Perhaps someday we can diversify the SCOTUS, and end the Harvard-Yale-east coast lock on the bench. Then we could move away from such silliness as “Rather, a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow from student body diversity.’”

    Because I think the “benefits” are illusory at best. I am not sure I ever received any actual benefits from having either Blacks or Hispanics or Muslims in my various classes on account of their minority status. If anything, a lot of time was wasted trying to pretend that diversity was somehow just magically delicious, like Lucky Charms.

    Squeeky Fromm
    Girl Reporter

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