Balkinization  

Monday, July 22, 2013

Teaching Materials for Fisher v. University of Texas

JB

[These are the discussion notes for Fisher v. University of Texas at Austin. A version of these notes will appear in the 2013 Supplement to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition).]

Discussion
1. Fisher appears to be a compromise opinion that sends the case back to the Fifth Circuit but does not purport to make new law.  Following Grutter, Texas had added a race-conscious component to its admissions policies because it believed that its existing facially race-neutral policies-- which included Texas's Ten Percent Plan--produced inadequate educational diversity. The plaintiffs disagreed, arguing that the use of race could not be narrowly tailored given the existence of formally race-neutral methods.
The court explained that narrow tailoring “involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although `[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’ strict scrutiny does require a court to examine with care, and not defer to, a university's `serious, good faith consideration of workable race-neutral alternatives.’ Grutter. Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If  ‘a nonracial approach ... could promote the substantial interest about as well and at tolerable administrative expense,’ then the university may not consider race. Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, n. 6 (1986).”
Note the Court’s formulation of the narrow tailoring test, including its citation to Wygant (a plurality opinion from 1986). Will the Court’s narrow tailoring test make it more difficult for colleges and universities to justify the use of race in admissions?
2. Justice Ginsburg criticizes the majority for treating ten-percent and class-based affirmative action programs as race-neutral, arguing that such plans are obviously race-conscious in purpose and design. Fisher suggests that the Court is willing to recognize a difference between benign and invidious race-consciousness in the creation of formally neutral programs and statutes (i.e., programs that do not overtly make racial classifications). The Court also seems to be willing to allow governments to use formally race-neutral means to achieve greater representation of minorities in colleges and universities.

In this respect, Fisher seems to follow Justice Kennedy’s limiting concurrence in Parents Involved. On the other hand, is Fisher consistent with the plurality opinion in Parents Involved, which strongly opposed “racial balancing”? That depends on whether the plurality’s analysis applies only to situations where the government employs explicit racial classifications or considers race in distinguishing among citizens. Is Fisher consistent with Ricci?

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