Home -> Law Blog Directory -> Legal Commentary Blogs -> Discriminations

Legal Commentary

: Discriminations

Enough Is Enough ... Isn?t It?

Peter Schmidt has an important and typically thorough article today in the Chronicle of Higher Education on a new lawsuit against the University of Texas?s ?top 10%? plan that could have far-reaching implications for the future of race preferences in higher education.

On behalf of Abigail Fisher, an 18 year old student at Stephen F. Austin High School in Sugar Land, Texas, who is in the the top 12% of her class, the Washington-based Project on Fair Representation is seeking to prevent the University of Texas from re-instituting race- and ethnicity-based preferences in admissions. (See its court filings here.)

In Hopwood v. Texas, 78 F.3d 932 (1996) the Fifth Circuit barred the University of Texas and other institutions in its jurisdiction from giving preferential treatment to minority applicants. In response, and in an effort to maintain ?diversity,? the university adopted a new admissions policy that did not take race into account, instead granting automatic admission to applicants in the top 10% of their graduating high school class.

Hopwood was effectively overruled in Grutter v. Bollinger, 539 U.S. 306 (2003), and as the plaintiff?s complaint in the current case, Fisher v. Texas, points out,

On June 23, 2003, the same day that the United States Supreme Court decided Grutter, UT Austin decided to resume employing race as a factor in undergraduate admissions decisions.

?The pending lawsuit,? Schmidt points out in the Chronicle this morning,

hangs its challenge to Austin?s race-conscious admissions policy on guidance given to colleges in the U.S. Supreme Court?s 2003 Grutter v. Bollinger decision. In that case, a five-member majority of the justices upheld the use of race-conscious admissions by the University of Michigan?s law school?superseding the Hopwood ruling?but the opinion also advised that colleges should engage in ?serious, good-faith consideration of workable race-neutral alternatives? before resorting to affirmative-action preferences.

From the plaintiff?s brief, linked above:

64. The Supreme Court reaffirmed in Grutter both that ?[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,? 539 U.S. at 341, and that ?whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution?s guarantee of equal protection,? 539 U.S. at 327.

65. Government discrimination based upon race is the exception rather than the rule under the Fourteenth Amendment.

66. The Supreme Court held that courts must apply strict scrutiny to racially discriminatory university admissions programs in order to ensure that admissions committees are ?pursing a goal important enough to warrant use of a highly suspect tool.? Grutter, 539 U.S. at 326.

67. The Supreme Court explained that ?racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.? Grutter,539 U.S. at 342.

68. The Supreme Court held in Grutter that universities have a compelling interest in ?student body diversity? such that, under limited circumstances, they may consider race or ethnicity as a factor in their admissions processes. Grutter, 539 U.S. at 328.

69. The Supreme Court further explained in Grutter that government is constrained in how it may pursue those ends, even where the end is a compelling state interest. The means chosen by the government must be narrowly tailored to fit its purpose. Grutter, 539 U.S. at 333.

70. The Supreme Court therefore held in Grutter that universities must engage in ?serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks? before turning to racial preferences. Grutter, 539 U.S. at 339.

How Many Is ?Enough?? And, ?Enough? For What?

As Schmidt explains,

[t]he new complaint ... argues that the 10-percent plan is exactly the sort of ?workable race-neutral alternative? the Supreme Court advised colleges to seek and that its effectiveness in bringing diversity to the University of Texas legally precluded the institution from going back to considering applicants? ethnicity or race.

The university?s lawyers say the plan has not brought their institution enough racial and ethnic diversity, especially given the rapid growth of the state?s Hispanic population....

How the court decides the question of whether the 10-percent plan has brought the university enough diversity may come down to its definition of ?enough.?

Schmidt nicely catches both sides to this debate in some interesting contradictions.

In a strange twist, each side in the dispute is offering arguments that its opponents made just a few years ago. For example, the university had characterized the 10-percent plan as race-neutral, while Edward J. Blum, director of the Project on Fair Representation, denounced such plans in a 2003 Chronicle commentary as ?another brick in the wall of massive resistance to the principle of nondiscrimination.? Now, however, Mr. Blum is calling the plan race-neutral, while the university?s lawyers are arguing in a legal brief that the policy ?was plainly designed? with the intent of increasing minority enrollments for the sake of bringing about a specific racial balance.

Unquoted here, but heavily quoted in the plaintiff?s brief, are numerous examples of University of Texas officials proudly proclaiming how successful the Top 10% plan has been in not only preserving but increasing ?diversity.?

Schmidt?s article, as usual, is excellent ? fair and balanced almost to a fault. Or maybe all the way to a fault, since, also as usual, I believe he missed a point or two that I think should have been made.

First, note UT?s argument that the Top 10% plan has not produced ?enough? diversity, ?especially given the rapid growth of the state's Hispanic population [emphasis added].? That ?especially? is an unwitting admission that UT is not really interested in ?diversity? at all, unless ?diversity? be defined (as it is treated in practice) as nothing more than proportional representation.

Second, Schmidt writes that if this lawsuit succeeds in barring Texas from re-instituting racial and ethnic preferences,

it could set a precedent whereby the development of effective alternatives to race-conscious admissions policies undercuts the defense of such policies in the courts. Colleges that have had to make do without race-conscious admissions policies as a result of ballot measures, court decisions, or some act of government may find it harder to go back to using them.

Well, duh! Of course it would! But that would be because Grutter required institutions that value ?diversity? to seek ?diversity?-producing alternatives to race preferences, which should only be used only as a last resort.

And left unsaid here is the equally obvious precedent that would be set by the failure of this lawsuit ? that Grutter?s requirement to find and use alternatives to race preferences wherever possible can be safely disregarded. It would become the modern equivalent of Justice Powell?s begrudging acceptance, in Bakke, of the limited use of race as a tie-breaker that was transformed by the education establishment into a practically unlimited license to place whatever weight on race they wanted.

For the race-mongers in higher education and elsewhere, ?enough? is never enough.

Full post as published by Discriminations on May 27, 2008 (boomark / email).