While yesterday's Supreme Court decision involving affirmative action (Fisher II) marked an important legal victory for affirmative action supporters, the Court's 4-4 immigration decision left in place a lower court ruling that had halted President Obama's plan that would protect millions of people from deportation. Michael A. Olivas has an excellent piece (available here) on the immigration decision in an L.A. Times editorial. You can also read about his reaction to the Fisher II decision in InsideHigherEd (available here).
The following is a guest post from Vinay Harpalani, J.D., Ph.D., who is Associate Professor of Law at Savannah Law School.
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Most surprising to me was Justice Kennedy’s statement that UT “had no reason to keep extensive data on the [Top Ten Percent] Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict scrutiny burden … [.]” I would have thought that, given his general aversion to race-conscious policies and his Fisher I emphasis on necessity, Justice Kennedy would have obligated UT to collect and analyze such data. Justice Alito’s dissent also raised this point. However, as my colleague Professor Shakira Pleasant astutely pointed out, Justice Kennedy framed the evidentiary scope of this case in narrow terms: he noted that studies conducted since 2008 would have “little bearing on whether petitioner [Abigail Fisher] received equal treatment when her application was rejected in 2008.” This, combined with the lack of notice to UT to keep extensive data on its Top Ten Percent Plan admits prior to 2013, let UT off the hook for not having more evidence on the record.
The majority opinion also notes that “the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to.” Whatever his aversion to the use of race, Justice Kennedy was not willing to let UT be blind-sided by every conceivable attack on affirmative action.
The only pause for proponents of affirmative action is that UT’s race-conscious policy had a very small impact: in fact, Petitioner Fisher argued that it was too small to meet the narrow tailoring test because it could not help UT achieve its diversity goals. The majority soundly rejected this argument, but Justice Kennedy, in his Grutter dissent, had noted that the “modest use of race” was not unconstitutional. There is a weak but plausible inference that his affirmance derived from the modesty of UT’s plan, and that admissions policies that use race to a greater extent can still be effectively challenged.
Justice Alito’s dissent in Fisher II was interesting and ironic. He raised several arguments that proponents of affirmative action might well support in other contexts. For example, Justice Alito referenced “racial and cultural bias” in the SAT and questioned why UT weighted SAT scores as much as it does if the test is biased and/or favors wealthy applicants. To bolster this critique, he actually cited several amicus briefs that had been submitted in support of UT. Plenty of other champions of racial justice—most notably the late Professor Derrick Bell—have also highlighted problems with the SAT. Justice Alito does not explicitly endorse critiques of the SAT (as Justice Clarence Thomas has in the past), but his dissent points to an interesting conundrum for affirmative action at elite universities.
Justice Alito’s dissent also denounces UT for “the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are ‘from lower-performing, racially identifiable schools.’” Here, Justice Alito again usurps and misapplies an argument from progressives such as Professor Lani Guinier, who have critiqued the classist nature of affirmative action at elite universities.
Additionally, Justice Alito referenced discrimination against Asian Americans, both historically in America and specifically in UT’s admissions plan. This comment should be viewed in light of pending lawsuits by Asian American plaintiffs against Harvard and the University of North Carolina at Chapel Hill, which are being litigated by the so-called Project on Fair Representation—the same organization that brought Abigail Fisher’s case. Also, the Asian American Coalition for Education recently file a Title VI complaint against Yale, Brown, and Dartmouth, alleging racial discrimination against Asian American applicants. Of course, many other Asian American organizations unequivocally support affirmative action. Nevertheless, the specter of these lawsuits creates another dilemma: how can progressives address “negative action”—the allegation that elite universities hold Asian Americans to a higher standard than all other groups, including White Americans—without disrupting affirmative action.
These issues raised by Justice Alito’s dissent do present future battlegrounds for affirmative action. The debate over race-conscious university admissions is by no means going away.
But Thursday’s ruling in Fisher II was the clearest victory for affirmative action since that day 13 years ago when Grutter came down. And with a strong likelihood that the late Justice Antonin Scalia’s replacement will move the Court further to the left, universities can proceed confidently with race-conscious admissions policies, so long as they thoroughly explain and document their reasons for doing so.
Welp, the regression model—that I developed with my much admired colleague, Clay Francis, in our forthcoming article, Predicting Federal Judicial Decisionmaking in University Admissions Cases—for predicting how the SCOTUS would decide the Fisher v. Univ. of Texas case was . . . not exactly right.
Our prediction, had Justice Kagan participated in the decision, was that the admission plan at the University of Texas would be struck down by a 5-3 decision. Justice Kagan, of course, abstained, and this morning, the SCOTUS released its 4-3 decision to uphold the admission plan.
The good news: our model, correctly predicted the decision of 5 of the 7 justices who decided this case. Odds are that the model also correctly predicted how Justices Kagan and Scalia would have decided the case, had Kagan not abstained, and Scalia not passed away before the decision was released.
However, even though the model considered Justices Kennedy and Breyer to sit virtually at the tipping point of affirming or reversing the Fifth Circuit Court of Appeals decision to uphold the admission plan, our model ultimately predicted that they would reverse—or strike down the admission plan. Chalk this one up to the preponderance of old, white, male judges who attended T-14 law schools, had federal court experience, etc., who comprised the majority of our sample, and thus didn’t account for the fact that Justices Kennedy and Breyer could swing the other way.
To save face, and in honor of the case originating in the Fifth Circuit, here are five takeaways of the hot-off-the-presses SCOTUS decision in Fisher v. University of Texas:
- The majority opinion demonstrated a significant level of deference to the University of Texas and the state legislature in narrowly tailoring its admissions policy to achieve its stated compelling state interest. Part of this deference is due to the fact that the admission plan is so unique. See pg. 8 at III. Judicial deference is something that, notwithstanding Grutter, has defined the post-Bakke era of federal judicial decisionmaking, and this most recent decision is yet another case applying deference to universities. Quoting the Fisher I opinion: “the decision to pursue ‘the educational benefits that flow from student body diversity’ ... is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” See pg. 7. Justice Kennedy, writing for the majority, also underscored the fact that universities should be afforded latitude in achieving “qualities [such as diversity] which are incapable of objective measurement but which make for greatness.” See pg. 19 (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950)).
- The majority has decided not to throw out the important reasoning upon which its earlier jurisprudence on cases involving the use of race in university admissions processes rested, by reaffirming the importance of diversity in higher education. In fact, in the majority opinion alone, the word “diversity” is reference over 25 times. Thus, the SCOTUS implicitly holds that its emphasis on the importance of diversity in the higher education setting in earlier decisions, such as Grutter and Bakke, is still good law. This is probably the most significant part of today’s decision, and I’m sure that admissions offices and general counsels at universities across the land breathed a sign of relief when they read the opinion.
- However, in a pithy dissent, Justice Thomas sticks to his guns. He, still, would prefer “overrule Grutter and reverse the Fifth Circuit’s judgment.” See pg. 1, Thomas Dissent.
- The SCOTUS holding in Fisher II is pretty narrow. The majority finds that the government has met the burden of proving the admission plan survives strict scrutiny. Moreover, it acknowledges that the record is relatively bereft of evidence, particularly statistical evidence about how the students admitted under the Top Ten Percent part of the admission plan contribute to diversity as compared to the students admitted to the university under holistic review. Thus, the court holds that its decision is circumscribed to the sui generis admission plan at the University of Texas.
- This isn’t the last challenge of university admission policies that the federal courts will encounter. The SCOTUS even anticipates that there will be more, and potentially, even from the same admissions policy at the University of Texas: “[t]he University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission pro- gram’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests.” See Syllabus, pg. 2.
What is due process? Traditionally, due process is the government’s responsibility to perform fair and regular procedures before legally depriving you of life, liberty, or property. Traditionally, due process equates to greater individual protections when the claim against you is more serious and the potential penalty holds greater consequences. And traditionally, due process is guaranteed through Constitutional protections of the Fifth and Fourteenth Amendments when students attending a public college are at risk of suspension or expulsion. However, college degrees no longer have traditional value; they’re worth more than ever. Accordingly, suspension or expulsion from college can be life-changing. Is due process adapting from traditional applications to meet the current demanded protections of students across the United States?
Some colleges recognize this increased value and adapting the application of due process to students facing suspension or expulsion. North Dakota recently recognized students’ due process rights, passing legislation permitting students at public colleges to have attorney representation during hearings potentially resulting in suspension or expulsion. Complicating this matter, colleges across the United States have instituted conduct codes allowing accountability of students for off-campus behavior. Essentially, colleges can educationally sanction students for criminal charges occurring miles from campus if the conduct negatively impacts the mission of the college. The stakes for college students earning a degree have rarely been greater, and the net colleges can cast to regulate student conduct have rarely been wider.
It’s not just the value of having a college degree, but also it’s more of the disadvantages for an individual without one. U.S. News highlighted a 2013 income gap study by Pew Research Center (PRC), revealing individuals between the ages of 25-32, holding bachelor’s degrees working at least 35 hours weekly, made on average $17,500 more annually when compared to individuals within the same demographic holding only high school diplomas. PRC also found jobless rates among ages 25-32 with only high school diplomas were around 12.2%, compared to those with bachelor’s degrees at 3.8%. A college degree is no longer a way to ensure an individual’s survival, but an element to survival.
Courts have historically bestowed great deference to colleges when regulating off-campus conduct negatively impacting the mission of the college. In Kusnir v. Leach, Kusnir faced on-campus charges because of alleged disorderly conduct off-campus. Kusnir challenged the college’s authority to discipline for off-campus conduct, the court finding colleges have a vital interest in the character of its students, and may regard off-campus behavior as reflecting upon a student’s fitness. However, courts have not always upheld a college’s authority to discipline students for off-campus conduct. In Paine v. Board of Regents of the University of Texas System, Paine was put on probation through the criminal courts for possession of marijuana off-campus. The college automatically suspended him, only to have the suspension invalidated by the court, citing the off-campus behavior posed no threat to the institution.
Colleges have responsibilities, and students have rights. Given the heightened value of a college degree, should students receive greater protection? If so, how does due process apply?
In a throwback to the 1960’s and the days of the grassroots protest movements, students of color throughout the U. S. have answered the “call to action,” to stand up and demand accountability. Students of color want to feel included on their college and campuses and today’s rhetoric highlights how students are balancing two of their constitutional protections to combat discrimination.
At the University of Missouri, 30 Black football players announced they would not participate in team activities until the University of Missouri System’s President was removed for ignoring incidents of racism on campus. For months African American student groups had brought attention to racial slurs and other micro-aggressions on the predominately white, 35,000-student flagship campus, but they were continually being ignored by the administration and the four-college system.
Members of the University of Oklahoma’s chapter of the Sigma Alpha Epsilon Fraternity were recorded singing racist lyrics about Blacks joining their fraternity. At the University of Mississippi a noose was hung around the neck of the statue of James Meredith, the first admitted African American student to the university. At the same university alcohol and racial slurs were hurled at an African American student as she walked near the campus. Students have embraced their First Amendment rights to engage in protest against these incidents as expressions of solidarity with African American and other underrepresented students across the country.
Symbolic speech is protected by the First Amendment as recognized by Tinker v. Des Moines Independent Community School District and Edwards v. South Carolina. The Constitution is aimed at protecting and furthering certain values. The First Amendment protects us from government suppression of speech, including speech that is offensive, repugnant and even hateful. The Fourteenth Amendment's Equal Protection Clause guarantees the right to freedom from discrimination on the basis of a protected status: in this case, it is race and ethnicity. Students of color around the country are utilizing their First Amendment free speech rights to protest about their unfair treatment on campuses. Under the Equal Protection Clause, similarly situated students should be treated similarly. Unfortunately, this is not always the case.
On some campuses, students are staging walkouts or protests to force out Presidents or to dismiss controversial professors. On others, African American students have gone online to share information about their experiences at predominantly white institutions. And it’s not only students; even faculty and administrators of color have offered their own testimonies of marginalization and exclusion that echo the students’ expressions of dissatisfaction. While students continue to invoke their First Amendment right to protest what they consider unequal treatment too many college campuses fail to embrace diversity regardless of the equal protections afforded them by the fourteenth amendment as recognized in Plyler v. Doe.
Changing that narrative is the challenge for most institutions. There is not a one-size-fits-all and no magic wand to promote and facilitate inclusion. There has to be a defined game plan to ensure that diversity translates into inclusion and not just pseudo attempts at looking inclusive for the college’s brochure. Providing staff and resources are an important part of addressing race and equity issues and creating inclusive, justice-centered campus environments. However, at the same time, we should remind ourselves that issues of equity and inclusion around race and ethnicity are the responsibility of all staff and faculty.
This post was co-authored by Lee Edward Brockington and Dr. David Nguyen. Mr. Brockington is a 3rd year law student (3L) in the joint JD/MBA program at the UND School of Law and College of Business and Public Administration and serves as a law clerk in the University’s Office of Diversity and Inclusion.