Balkinization  

Tuesday, August 28, 2012

A Skeptical Take on Fisher v. UT

Stephen Griffin

Because I am teaching a course this fall on the fourteenth amendment, I’ve been meaning to post on the upcoming big case, Fisher v. University of Texas.  I’m also home bound for Hurricane Isaac, which gives me time to opine, which I hopefully will be able to complete before we lose power.  Then I can spend the lights out period (it was 30 hours for Hurricane Gustav in 2008) in suspense about the comments.

In the hopes of anticipating how the case will be decided, I’ll provide a skeptical take on the case, by which I mean skeptical toward UT’s position.  UT prevailed in the Fifth Circuit on the basis of Grutter, but this decision likely did not meet with the favor of the four justices who granted cert.  Personally I support affirmative action and have no special insight into how Justice Kennedy, everyone’s favorite swing justice, thinks.  I figure, however, that I will have a better chance of anticipating possible lines of inquiry at oral argument and so enlightening my students about the case if I lean against my own beliefs rather than going with them.

So suppose you are a justice who is a close student of doctrine and is inclined to be skeptical toward affirmative action.  Your key texts are Justice O’Connor’s majority opinion in Grutter, Justice Kennedy’s dissent and Justice Powell’s opinion in Bakke (which Kennedy cited with approval).  In light of the Fifth Circuit’s opinion and the briefs filed by both parties and the US, what weaknesses can we spot in UT’s position?

The first is a point that has troubled me as I have taught these cases over the years.  From the Court’s perspective, it is reasonably clear that affirmative action or, more technically, the use of race-conscious remedies, is thought of as temporary.  Eventually, within a reasonably near future, affirmative action is going to end.  Justice O’Connor’s opinion is clear on this point, although she did confuse matters by talking of a 25 year period.  Kennedy did not make this point in Grutter, although, as discussed in a moment, it hardly matters because of the stress he put on the point that the use of race is always harmful.  It is therefore noteworthy that the UT and US briefs fudge on this point, talking of regular review of affirmative action policies.  This is fine, but it is not exactly in the spirit of acknowledging what the Court has already stated rather clearly, which is affirmative action must terminate in the near future.  I speculate that if Fisher is not the case for the Court to make this move, it will happen in about ten years or by Justice Kennedy’s retirement, whichever is first.  It seems likely that many stakeholders in the higher education world are not ready for this.

A related point is that the UT and US briefs do not acknowledge what the Court believes, which is that the use of race, even as a factor in a holistic review of individual admissions files, works a serious constitutional harm.  From the Court’s perspective there is no way to avoid this, which is why affirmative action must be at most a temporary remedy.  So this tracks into the point just made but also supports another line of inquiry – the importance of race-neutral alternatives.  In Grutter, Justice O’Connor believed there were no reasonable race-neutral alternatives in the case of admissions to a highly selective law school.  But the State of Texas created a race-neutral alternative, the top ten percent plan.  This plan has various flaws if, like UT, you are a selective university.  But it does work in the sense of creating some racial and ethnic diversity at UT.  It may not create enough from UT’s perspective, but is this relevant?  The Court has endorsed diversity as a compelling interest.  To my way of thinking, the Court is not clear on whether greater racial and ethnic diversity is compelling per se.  But because the Court believes the use of race always works a harm, this strongly implies that any promotion of racial and ethnic diversity must be achieved solely through race-neutral means, if such means are available.  UT disagrees, which is probably the most straightforward reason to expect it to lose the case.

The relative success of the top ten percent plan may suggest to our skeptical justice that other universities might be able to do the same.  It is reasonable to expect private universities and graduate schools to point out that this will not work for them and it looks like they have made this argument persuasively in amicus briefs.  A state can order its top university to accept the top ten percent of students in each high school graduating class.  But there can be no such plan for selective private colleges not funded by state governments.  They can achieve a diverse class only by following the methods Justice O’Connor approved in Grutter.  This might give our skeptical justice pause and convince them the issue is more complex than it first appears.  Or it might direct them toward terminating affirmative action altogether.

Finally, everyone agrees that UT’s policy will be tested under strict scrutiny.  Under this standard of review, we examine whether the means were “narrowly tailored” toward the ends.  A skeptical justice might push UT on proving whether the affirmative action measures it adopted on top of the race-neutral top ten percent plan achieved their diversity goals.  UT identified a shortage of minorities in classrooms as the problem they were trying to remedy.  UT shows persuasively that the extra added value plan did increase the number of minorities at the level of the entire admitted class.  But did it improve classroom diversity?  Further, given the educational advantages that UT thinks diversity provides, were those advantages realized in those classrooms that became more diverse?  If not (or if UT doesn’t know whether educational outcomes improved), then why was the extra added plan justified given that the use of race always works a harm?  Arguably, UT did not “close the loop” on narrow tailoring with respect to showing that their plan not only increased minority admissions but produced desirable results in the classroom.

It will be interesting to see whether any of these points are raised in the upcoming oral argument.

 

 

Comments:

Very interesting take on this case, thank you for taking the time to write it for us to think about.

What's interesting to me immediately is that the thought processes here seem to me to be that of Justice Kennedy alone. I think the four conservatives think: you can't use race, the end while the four liberals would let the school use it under Bakke. It's likely only Kennedy that is going to ask such pragmatic empirical questions such as how private schools are impacted, how much actual diversity is added, etc. (well, the others might ask those questions but I don't think the answers will be deciding for them).
 

Kennedy supports some sort of race conscious programs (see Parents Involved) but is very wary about student specific plans, especially when there are alternatives such as the 10% plan. Uphill battle.

Since Kennedy says he is actually supportive of RCP of the right caliber, it would be sensible for him or one of the liberals to find a program that Kennedy would find acceptable, so lower courts and schools can know so as well.
 

I do not agree with the premise that all considerations of race are necessarily "constitutionally wrong". If one views equality (and equal protection) as a process involving many participants (or all), then one should be able to recognize that in some contexts race should be among several factors to be considered. It is not a given that such a consideration would only be "temporary," especially since equality as a process may involve the need to consider race in certain ways at some points and in other ways at other points in time.
Full attention to equality (and equal protection in the real world) would seem to demand attention to all aspects of social context (which may be impossible or problematic) and, at least, certain aspects of social context over time.
JJ Paust
 

I appreciate JJP's comment and it underlines that just what "equal protection" means is open to debate. Suffice to say, the OP is more a matter of what is currently accepted doctrine, not what is the best doctrine.
 

My process orientation comes from Realist recognitions. International Law, as supreme law of the United States under the Supremacy Clause, is also relevant. Please see 18 Mich. J. Int'l L. 659 (1997), which includes the affirmation: "a shared protection, realized ultimately for wach person, is protection from ongoing processes of discrimination, and no state should deny to any person such protection of the laws." Id. at 675. In a sense, we are all involved in the process of "equal" "protection" and there are consequences with respect to any form of human choice.
JJ Paust
 

sorry: "wach" should read: each
 

I second Jordan. The writersd here are hopelessly stuck in the US0 internal law and its legacies. From one I law (NOT US foreign relations law) perspective it is obvious that race conscious policies are permitted and even noted in some human rts treaties. Kennedy and all are stuck in their temerity and intimidation by Thomas - an affirmative action race baiter. If you think it needs to be temporary repost with my permission my "Bringing Light in Ohio 2012; "Coon" Davis Finds his Place at True the Vote Ohio Summit" over at saltlaw.org/blog.
 

I appreciate Steve's analysis, but it only underscores the ineptitude of O'Connor's opinion in Grutter. If in fact one takes "diversity" seriously, then, frankly, the 25-year limit makes no sense, unless one has a truly fantastic (as in magical and delusional) belief in the invisible hand. It's like saying that football coaches should be indifferent to whether entering students are quarterbacks or left tackles, since both, after all, are football players. Or the orchestra conductor will be indifferent as to whether applicants play the violin or oboe, since both are musicians.

And, of course, the only reason the 10% plan "works" (though it has highly problematic consequences for UT) is that Texas remains highly segregated (defined as a very high percentage of almost all-minority schools in large cities).

Steve may be correct in predicting the outcome in Fisher, but it speaks to, shall we say, the intellectual inadequacies of the presumptive majority of the Supreme Court of the United States.
 

I think Prof. Levinson is being somewhat unfair about O'Connor's opinion, particularly given the realistic limited options involved given the state of the Supreme Court. This suggests the Court, not the opinion as such has "ineptitude."

I don't think O'Connor is saying that suddenly after 25 years that diversity won't be a value. The limit is to the specific means of advancing that end. If time limits are a problem, you will need to add Justice Ginsburg and Breyer to the pile, per their concurrence, though they didn't set any (realistically not fixed) limit.

The 10% plan does work as far as it does [it would be helpful if "highly problematic" is described a bit more & if he has the inclination, perhaps SL would post on his favored student choice system ... btw, I enjoyed "Wrestling with Diversity"] because of continuing discrimination.

This goes back to JJ Paust's comments. I appreciate the international law perspective & its gloss on what the U.S., like other nations, "may of right do." [DOI]
 

O'Connor was a politician before she joined the bench and brought that sensibility to her opinions.

Her opinions in Grutter and Casey more closely resemble legislative balancing of interest sausage making than any intellectually coherent application of the Constitution.

Fischer offers an opportunity for O'Connor's replacement to clean up her mess.
 

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I frequently make a stab at them, thinking I'm going to blow it, and get approved anyway. I think they're making them absurdly difficult, and then permitting partially correct solutions. Maybe they've reached the point where the robots distinguish themselves by solving ones the humans can't?
 

I think that affirmative action based on economic status may be more equitable. This helps students who are at a genuine disadvantage, not a presumed disadvantage based on race.

I think diversity should be focused mostly on culture instead of color. Different ideas contribute to classroom discussion. Students with a variety of different worldviews help to enrich a classroom by offering multiple perspectives on the issues discussed.

Quota programs, which compare candidates to others within their race, often end up hurting minorities such as Asians (competition is often tougher), despite historical persecution of Asians in the US--think of the Chinese Exclusion Act and Japanese internment camps, not to mention wide personal prejudice.
 

I do not agree with the premise that all considerations of race are necessarily "constitutionally wrong". If one views equality (and equal protection) as a process involving many participants (or all), then one should be able to recognize that in some contexts race should be among several factors to be considered. It is not a given that such a consideration would only be "temporary," especially since equality as a process may involve the need to consider race in certain ways at some points and in other ways at other points in time.
Full attention to equality (and equal protection in the real world) would seem to demand attention to all aspects of social context (which may be impossible or problematic) and, at least, certain aspects of social context over time.


I think this sort of thing is unworkable because it could allow, in some circumstances, discrimination IN FAVOR of whites. (Indeed, one reason I think the Powell Bakke opinion is BS is because you can easily defend the old Harvard anti-Semitic Jewish quotas as a form of ethnic "diversity".)

It is a much better construction of the EPC to argue that it created a rule of nondiscrimination in response to discrimination that had existed before. Under that construction, it is still possible (strict scrutiny) to show that some sort of race-consciousness is necessary to serve the goal of nondiscrimination, but it's a difficult burden to meet.
 

I appreciate Steve's analysis, but it only underscores the ineptitude of O'Connor's opinion in Grutter. If in fact one takes "diversity" seriously, then, frankly, the 25-year limit makes no sense, unless one has a truly fantastic (as in magical and delusional) belief in the invisible hand

Well the real question is why we should take "diversity" seriously as a reason to allow an exception to a constitutional provision intended to bar discriminatory practices?

As I note, "diversity" is broad and flexible enough to allow discrimination in favor of whites (or against Jews or Asians, for instance). Which is why it basically doesn't work as a state interest to justify departure from the EPC rule.
 

Diversity can be advanced w/o allowing old fashioned Jewish quotas though it can be used as an excuse for that if done in a certain lazy way.

To remind, as Shag has, Asian groups have signed on to briefs to support the program here in part because they argue it is not such an offensive quota.

What the EPC does is to prevent deprivation of equal protection of the laws. The equation suggested was somehow rejected because whites might at some point benefit. Example? Other than an easily refuted red herring about Jewish quotas that is simply not the same as the current plan?

Also, Ginsburg at times had cases where men were helped. The fact in such and such a case equality works in favors of an individual white is not by itself an issue.

"Diversity" has to be balanced with other interests so the fact it potentially might be too "broad" is not very convincing. Education is about bringing a range of people. West Point, e.g., was not merely about merit from the start, but a means to bring the country together by bringing people from various places together.

And, is it really an "exception" to the EPC, or is it an exception to an unwritten gloss (race should never be taken into consideration)? Diversity is a means that in part is there to advance equality including the ability of individuality among groups. The oral argument of Gratz (Thomas even asked questions) is a good case in point here.
 

Speaking of diversity, but outside of college, consider this comment of mine on a subsequent thread at this Blog:

*****

DailyKos has a 9/2/12, 6:45 PM post that starts with this:

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How does "R-MONEY/R-AYN 2012" plan on such generation? Let's remind Lindsey of what Tonto said to the Lone Ranger when he said "We're surrounded by Redskins": "What you mean 'we,' ..., Kemo Savvy"? Lindsey isn't too savvy faire, is he?
# posted by Shag from Brookline : 4:46 AM

*****

Perhaps some opposed to diversity in colleges are opposed to diversity politically as well. Maybe some anger management is called for.
 

To remind, as Shag has, Asian groups have signed on to briefs to support the program here in part because they argue it is not such an offensive quota.

That argument is nothing short of brainless. Seriously. It's that dumb.

"Asian" groups do not reflect anything other than whatever political coalition they are aligned with. I have the utmost respect for public interest lawyers, but in the end they represent their coalitions-- they don't speak for all members of a minority group.

I'm sure lots of actual Asians would appreciate not having their kids face discriminatory admissions standards, actually.
 

Diversity can be advanced w/o allowing old fashioned Jewish quotas though it can be used as an excuse for that if done in a certain lazy way.

How is it lazy? Pre-Prop. 209, the University of California had maximum ceilings on Asian admissions, which the university Chancellor had to eventually apologize to the public for.

If you say we are going to have a minimum of X percent blacks or hispanics, you have to take those numbers out of some other pool. And if Jews or Asians are overrepresented among qualified candidates, that creates a maximum quota.

That's how it works, because percentages can never add up to anything over 100 percent.
 

So let's add Dilan to the Sen. Lindsey O. Graham camp wishing to "stay in business" (aka power, built on a foundation of slavery).

I'm sure lots of actual African Americans - as well as actual Asians - would have appreciated not having their kids face discriminatory admissions standards in the past, actually. Segregation was a remnant of slavery, with its especially significant impact on education, that continues to this day. Some may wish to keep it that way. But those changing demographics ....

 

"would appreciate not having their kids face discriminatory admissions standards"

Assuming the argument is as easy as saying how "brainless" debatable things are or saying how "stupid" Michele Obama was for talking at the convention yesterday.

The matter is in dispute. The briefs cited argues the point. They very well represent actual "kids" and their parents. Suffice to say, I'm sure the community is divided on just what is occurring here, including the "discriminatory" nature.

It's lazy because old fashion Jewish quotas by intent and practice is not the same as the ones here.

"If you say we are going to have a minimum of X percent blacks or hispanics, you have to take those numbers out of some other pool. And if Jews or Asians are overrepresented among qualified candidates, that creates a maximum quota."

Case in point. There isn't a fixed "quota" of seats. The briefs debate the details. But, instead of actually addressing them, you use terms like "brainless."
 

When other groups argue something, let's say the Thurgood Marshall leading the NAACP, was it also "brainless" or "that dumb" to point to their or his arguments as at least somewhat representative of the people they were speaking for? To red flag perhaps the argument is of some educative value?
 

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I'm sure lots of actual African Americans - as well as actual Asians - would have appreciated not having their kids face discriminatory admissions standards in the past, actually. Segregation was a remnant of slavery, with its especially significant impact on education, that continues to this day. Some may wish to keep it that way. But those changing demographics ....

I have no particular philosophical objection to affirmative action. It's not wrong to seek diversity, and it's not wrong to want to compensate members of groups who have been subject to historic discrimination.

But in practice, it's a mess. First of all, there really isn't a good argument for non-compensatory affirmative action under the Fourteenth Amendment. The Constitution sets a pretty clear non-discrimination rule, and when policies are unmoored from the actual victims of discrimination, they pretty much stand no better than the old caps on Jewish enrollment.

But beyond the constitutional problem, I don't think many of those admissions slots go to people who truly faced discrimination. They want donors, and to get donors, you have to favor middle and upper class applicants, and that means they select from the members of minority groups least likely to have suffered discrimination. Further, they discriminate against Asians, who would have a larger proportion of admittees in selective colleges without the preferences, in order to do it.

It's a mess as practically implemented. And the rhetoric about keeping things as they were is stupid. "As they were" was no Jews and no Asians.
 

Assuming the argument is as easy as saying how "brainless" debatable things are or saying how "stupid" Michele Obama was for talking at the convention yesterday.

The matter is in dispute. The briefs cited argues the point. They very well represent actual "kids" and their parents. Suffice to say, I'm sure the community is divided on just what is occurring here, including the "discriminatory" nature.


I agree that community is divided. But that's exactly why you can't say that "Asians" support their children being discriminated against in college admissions just because some Asian public interest lawyers filed an amicus brief.

It's lazy because old fashion Jewish quotas by intent and practice is not the same as the ones here.

Actually I think they are exactly the same. In both cases, the concern is that the campus is "too Asian" or "too Jewish". Indeed, THAT IS WHAT "DIVERSITY" MEANS!!!!!!!! You don't want too many of any group.

Case in point. There isn't a fixed "quota" of seats.

There was at Berkeley in the 1980's and the school ADMITTED it.

But also, I think you are being idiotic in saying this. There never HAS to be a quota. Just jigger the admission standards and you get the "right" number of people in without explicitly setting the number.

When other groups argue something, let's say the Thurgood Marshall leading the NAACP, was it also "brainless" or "that dumb" to point to their or his arguments as at least somewhat representative of the people they were speaking for?

Actually yes. It's quite true, of course, that unlike Asians, we have some evidence that most blacks agreed with Marshall. But simply assuming that because Marshall purported to speak for blacks that he did is, in fact, being a complete idiot about the way public interest groups practice law.
 

Yes, it's a mess. The Civil War was a mess, too. I'll put aside the "Dilan-taunts." But how do you fix a mess? Let's focus on the history of Texas and UT on racial discrimination until just recently with UT's new policy that is in issue, rather than Berkeley and Michigan, as set out in the Amici Brief submitted in support of the new UT policy by Tomiko Brown-Nagin and Lani Guiner referenced in an earlier comment of mine. This is an effort to clean up a mess that carries back to the Civil War until just recently. Do we sweep that mess under a rug without creating a mountain that African-Americans and other minorities have to climb? Are there enough brushes to whitewash over the evils of racial discrimination just in Texas and UT until just recently?

Dilan points out:

"I have no particular philosophical objection to affirmative action. It's not wrong to seek diversity, and it's not wrong to want to compensate members of groups who have been subject to historic discrimination.

But in practice, it's a mess."

But what would Dilan think appropriate for cleaning up the mess in Texas and at UT? Yes, Jews and Asians had gotten the shaft for many decades - but not as long as African-Americans, and not as badly. Jews and Asians did not have to start their own colleges for a crack at higher education.

Dilan's closing includes his latest "Dilan-taunt":

"Actually yes. It's quite true, of course, that unlike Asians, we have some evidence that most blacks agreed with Marshall. But simply assuming that because Marshall purported to speak for blacks that he did is, in fact, being a complete idiot about the way public interest groups practice law."

That's a broad brush that Dilan wields. Marshall spoke for many whites as well, including the unanimous Warren Court with Brown v. Board of Education. Perhaps Dilan can detail how Marshall's public interest group (NAACP) was inappropriate in the practice of law.
 

Err.. correction needed.

"Jews" if anything benefit from the current policy, according to none other than iconic Jewish academic Alan M Dershowitz. That's why he recommended Jewish groups support affirmative action.

So, today, it's only Asians who suffer.

Jews may have suffered pre-WWII, but as there is no cap on Jews now, they benefit from the current policies, being defined within the wider and amorphous "white" race.
 

I agree that community is divided. But that's exactly why you can't say that "Asians" support their children being discriminated against in college admissions just because some Asian public interest lawyers filed an amicus brief.

I don't think all "Asians" support something here & did not say otherwise. Some Asians, represented by the lawyers in question (as blacks were represented by Thurgood Marshall and the NAACP), do not think they are "being discriminated against." Strawmen doesn't really convince as evidence that something is "brainless."

Actually I think they are exactly the same. In both cases, the concern is that the campus is "too Asian" or "too Jewish". Indeed, THAT IS WHAT "DIVERSITY" MEANS!!!!!!!! You don't want too many of any group.

Caps aren't convincing either. Jewish quotas were a heavy-handed approach to set hard limits on how many Jews were allowed. This policy, which the "community is divided" about -- because some disagree that it is "exactly the same" etc. -- is not so simplistic.

There was at Berkeley in the 1980's and the school ADMITTED it.

I'm talking about the current policy. Caps + talking about something else, again, not very convincing.

Actually yes. It's quite true, of course, that unlike Asians, we have some evidence that most blacks agreed with Marshall. But simply assuming that because Marshall purported to speak for blacks that he did is, in fact, being a complete idiot about the way public interest groups practice law.

Apparently so. More name calling when I cite a public interest group as representing "at least somewhat" of people covered.

Unless you can show any real evidence why the groups involved are not "at least somewhat representative," perhaps can stop tossing around terms like "a complete idiot."

Note I did not say "most" Asians agreed. Fourth lesson -- calling people idiots for things they did not say ... not helpful.

Dilan, you are above this sort of crude laziness, aren't you?
 

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