Professor Spooner's Blog

Yesterday the Supreme Court (finally) decided Fisher v. University of Texas, the case involving a challenge to that school’s affirmative action program. Essentially, the Court punted, kicking the case back to the lower appellate court for reconsideration. Although at first glance the case seems like a meatless decision, the Court’s language will make it much harder for affirmative action plans to survive constitutional scrutiny.

The Court did several things in a relatively short opinion. First, it reaffirmed, albeit in a half-hearted way (“we take those decisions as given”), the key precedents found in Bakke and Grutter. Essentially those cases said that diversity in the classroom is a compelling government interest that justifies the use of racial preferences. So as of now, that holding remains.

Second, the Court held that the lower court had applied too loose of a standard in determining whether the University of Texas’s plan was constitutional. Texas has what is referred to as a “Top Ten Percent Rule” whereby the top 10% of every high school class is admitted automatically. It is undisputed that the Top Ten Percent Rule created racial diversity for Texas, but the school claimed it was not sufficient to create the “critical mass” of diversity that leads to educational benefits. So in reviewing the remaining applicants, race was one factor in a holistic review. That holistic review was created to mirror the one used by University of Michigan’s Law School, which was approved by the Supremes in Grutter. The question in Fisher is whether the school can use racially conscious reviews of applicants if its race-neutral policies created diversity.

The Supreme Court didn’t answer that question, although it looks like the answer will ultimately be probably not. What the Court did instead was explain that strict scrutiny, the standard of review for any racial distinction in any area, really means strict scrutiny. Strict scrutiny is a two party test: there must be a compelling government interest (met here) and the government action must be narrowly tailored to achieve that interest. The lower court had given the school the benefit of the doubt; held that as long as the school’s good faith assessment is that more diversity is required, that meets the narrowly tailored requirement. The Court corrected the lower court, holding that the University of Texas must show that the racially conscious review is necessary to achieve the compelling government interest. That means presenting evidence to prove that it cannot achieve the educational benefits of diversity without affirmative action.

Having read the briefs, heard the oral arguments, and now read the opinion of the Court, I think it is going to be difficult for the University of Texas to present evidence to convince a reviewing court that its affirmative action plan is necessary. The Top Ten Percent Rule appears to work, and the University’s efforts to quantify a “critical mass” were almost laughable. The problem is that defining a critical mass gets into the minutiae of everyday life at a university: how many African-Americans must be in each classroom for that particular class to have the advantages of diversity? What if none of the Hispanic students sign up for poetry classes? Does that mean more Hispanics (that love poetry) must be admitted? Think about this in the context of your own education, and you see why the Fifth Circuit said this determination is too hard, and we should just trust the schools.

The Court either wanted to make this so hard that it is rarely used, or just wanted to remind us all that strict scrutiny means strict scrutiny.  The Court stated, “Strict scrutiny must not be strict in theory but feeble in fact.”  Fisher is a triumph for law professors like me that spend hours pounding standard of review into our students’ heads. All those blank stares, and all that wonder at why I ask so many test questions about strict scrutiny, were answered yesterday.

Both sides in this case claimed victory. I think the opinion is more of a victory for the opponents of affirmative action, despite not being a broad proclamation that affirmative action is unconstitutional. For the proponents of affirmative action, the opinion was more of a “disaster averted,” as David A. Strauss, a law professor at the University of Chicago, stated in the New York Times.  It is going to be more difficult for universities to use race in admissions. Only time, and perhaps a few trials, will tell whether it will be impossible.

Here is the opinion.