an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Holistic Review and the Injuries of an Affirmative Action Plaintiff
Perhaps the most striking segment of today’s oral argument in Fisher v. University of Texas was the intervention by Solicitor General Don Verrilli, who had ten minutes to argue on behalf of the United States (intervening on the side of UT). In a turn of events that I imagine must have surprised both Verrilli and the Justices, he spent the bulk of his ten minutes resisting the premise of a single, relatively straightforward hypothetical posed by Justice Alito. Justice Alito had previously been skeptically prodding UT’s counsel, Greg Garre, about the University’s suggestion that it had an interest in admitting the minority child of “successful professionals in Dallas.” Alito asked Verrilli: “If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents. One falls within two of the groups that are given a preference, the other doesn't. It's a marginal case. It's the last -- the last position available in the class. Under the Texas plan, one gets in; one doesn't get in.”
The SG disagreed with the premise, and to his credit, he did not yield the point, although this then forced him to spend most of his ten minutes on the project of explaining that UT does not use race that way, as an automatic “plus.” “Not everyone in an underrepresented group gets a preference,” Verrilli explained. Rather, UT uses race “holistically.” Race affects the evaluation of applicants in a subtler way, by “casting the accomplishments…or the potential of an individual applicant in a particular light.” Justice Scalia either didn’t buy this or didn’t understand it. If two applicants are “otherwise identical,” Scalia asked, “what does the racial preference mean if it doesn't mean that in that situation the minority applicant wins and the other one loses?” Chief Justice Roberts piled on, noting that race is the “only thing on the cover of the application” relevant to what UT says is a holistic review process. These justices are essentially saying: come on. You are doing affirmative action. How can that mean anything but an automatic “plus” for all underrepresented minorities?
This extended colloquy revealed an interesting gap between the way affirmative action opponents assume “racial preferences” must work and the way most colleges and universities that practice affirmative action in the “diversity” era self-consciously understand their own practices. This gap was visible earlier in the argument as well, in perhaps an even more revealing way, when Justice Sotomayor, bringing up an example from the briefs, said this: “even a white student, I presume, who goes to an entirely black or an entirely Latino school, who becomes class president would get some points because he has or she has proven that they foster or can deal in a diverse environment.” The lawyer for the plaintiff, Bert Rein, either did not understand or simply wished to deflect this point, and said, “the white student president of the class in an ethnically different school” would of course get points for “leadership” like any other class president—but no points for anything to do with race.
I would venture to say that nearly every admissions officer at a selective college or university in the United States would understand that Rein was not talking about the same thing Sotomayor was talking about. A white student elected class president at an “entirely black or entirely Latino” school is a rare bird indeed. That person is a far more interesting case than a similar white student who was elected class president in a predominantly white school—for reasons that simply cannot be explained without at some point mentioning race. In terms of both “achievement” and “potential,” her accomplishments (in particular her election as class president) look different and frankly more impressive because of their surprising racial context.
Admitting this would be destabilizing for affirmative action opponents, in part because it would further complicate the question of racial injury—the harm that a white plaintiff like Abigail Fisher allegedly suffers because of UT’s consideration of race. The trouble is that in the age of “diversity,” the use of race is not a binary switch, but a continuum. It is difficult to know exactly how deracinated an admissions process would have to be in order to satisfy affirmative action opponents—and whether that deracination is even possible, given that admissions officers cannot help but notice that applicants hail from high schools, families, and neighborhoods in a non-colorblind world.
Here is what I mean by the question of racial injury. Abigail Fisher, the plaintiff in this case, cannot show that she would have been admitted to UT if the University’s affirmative action policy did not exist. Now of course, this is a common problem for affirmative action plaintiffs, who often seem to be graded on a curve: courts will sometimes credit affirmative action plaintiffs’ injuries for standing purposes not when they could actually benefit from the relief sought (i.e. if they would be admitted if the school would discontinue the affirmative action program) but rather, when the plaintiff can at least meet the lower bar that they would have been admitted if they could have benefited from the affirmative action program, i.e. if the program remained in place, and they had been black instead of white. Abigail Fisher does not appear to meet even this lower bar. It seems fairly clear, although not certain, that if she had been black, she would not have been admitted. (Her lawyer says this is something to be litigated on remand. Part of why it is not certain is that the University’s holistic review process does not add a fixed “plus” by race. But the University can show that plenty of black and Latino applicants with higher “academic index” scores than Fisher, meaning test scores and grades and so on, were denied admission.)
This leaves two theories of injury that seemed to appeal to the Justices at oral argument. One is essentially a “loss of chance” theory: that even if Fisher would probably not have gotten in, even absent affirmative action, she might have at least had a better shot. The other is an “expressive harm” theory: that Fisher’s injury is essentially that she had to suffer the indignity of participating in a state-sponsored admissions process that considered race at all. On this second view, even an entirely unqualified white candidate, miles short of the admissions standards, would be just as injured as Fisher even though there is no circumstance under which he would ever have been admitted to UT. (Indeed, perhaps even a taxpayer or a voter would have standing on this theory.) At oral argument today it appeared that something like this second view was drawing some support.
But what if Justice Sotomayor’s class president were among the students in the incoming class who benefited, during the holistic review process, from being that rare bird, the white class president in an otherwise entirely black or Latino school? And what if, at the same time, as SG Verrilli argued, not every minority student actually got any plus points (because the process is more individualized than that)? Now we have a problem. It becomes harder, at that point, for Fisher to claim a simple disparate-treatment sort of injury: it’s not that she lost out on automatic plus points she would have received if and only if she were a different race, but rather, that nothing about her background impressed the admissions officers in the way that this other white student, the class president from an “entirely” minority school, impressed them. Is that an expressive harm?
What if the admissions committee was impressed with a black student from a racially mixed school who wrote a compelling essay about personally experiencing a racist incident. Is it an expressive harm if an admissions officer finds that essay significantly more compelling than a couple of other essays, by white students—even though all the essays were written equally well—on the grounds that the particular racial context in which this black applicant lives presented some significant challenges, over and above the challenges that might be discernible from looking at the parent income figure on his application for financial aid? Or what about a promising Latino student from the Rio Grande Valley who won a scholarship to a private boarding school in Dallas, who writes a compelling essay about her desire to become a doctor and practice in the Valley, where she sees a lack of needed medical services that she attributes to structural racial discrimination? Is it an expressive harm to Fisher if an admissions counselor finds that one more compelling than the essay of another student who also wants to become a doctor? At some point, if you push the needle far enough, it starts to sound as though the expressive harm to white applicants (taxpayers? voters?) might begin when admissions officers acknowledge in any way, while reading applications, that we do not live in a paradise of racial integration and equality, but in a society where race matters.
The irony of the Fisher case is that UT has been following the advice the Court gave in Bakke and Grutter exceedingly faithfully—maybe too faithfully. UT’s use of race in its holistic review process was rather blatantly designed to replicate, to the degree possible at a large school, the Harvard plan approved by Justice Powell in Bakke, with its highly individualized consideration; UT departed from Michigan’s approach in Grutter exclusively in order to allay some of the specific concerns Justice Kennedy raised in his dissent in that case (for instance, at UT there is no suggestion of an implicit numerical goal and no periodic checking by the admissions staff to see how the evolving class is doing in terms of racial demographics). In successive compromises, the Court has blocked not only quotas (Bakke) but also mechanical plus factors (Gratz). This leaves, and indeed has encouraged if not required, the weaving of affirmative action into a larger inquiry about many topics related to diversity, including hardships overcome and experiences a student will bring to the table. At UT, in the holistic review process, the use of race has been so thoroughly submerged into this larger inquiry that UT had a difficult time telling the Court precisely how many admissions decisions would have changed, absent the consideration of race, for the simple reason that it is impossible to rerun those individualized reviews. (Also, the bottom line answer is probably “not many”; on the continuum of possible uses of race, UT’s is modest. This, too, was an effort to hew conservatively to the contours of the compromise the Court settled on nine years ago in Grutter. The result of all these careful attempts at narrow tailoring was a sort of catch-22, explored briefly by Justice Kennedy at oral argument today: the more modest the use of race, the more plaintiffs like Fisher attempt to argue that no compelling interest is actually being served.)
At this point, it seems to me that there is no way this Court or any court can actually eliminate the use of race from college admissions. They can try. New anti-affirmative-action decisions may move the demarcation lines that tell colleges where and how to use race in admissions. But such decisions will not cause admissions officers to become truly blind to race, unless they require colleges to stop engaging in subjective efforts to build diverse and vibrant classes, and instead demand some mechanical metric of grades and test scores. There is no constitutional reason to require such an outcome, and at any rate, elite colleges would never accept it. Still, victories for anti-affirmative-action plaintiffs might have a number of important effects: reducing somewhat the overall level of racial diversity on campuses; encouraging holistic review processes that further submerge the use of race; encouraging the further use of facially race-neutral policies carefully calibrated to achieve racial diversity; and encouraging schools to shift more of the burden to applicants to think and write about race in the admissions process themselves (as in “tell us how you would contribute to the diversity of our school” or “tell us about obstacles you have overcome”). These are among the many “winks, nods, and disguises” to which Justice Souter referred in his dissent in Gratz, in which he asked whether perhaps honesty was a better policy.
The conservative justices asking skeptical questions of Verrilli in today's argument seemed to be fighting the last war: they imagined UT’s policy as more similar to the policy in Gratz, a mechanical plus factor that gives every black or Latino applicant an edge over every white one. But actually, they’ve already outlawed that. Following the Court’s signals carefully, UT took care to use race in a much subtler way, a way based more on the Harvard plan, taking seriously the idea of individualized, holistic review. When Justices complain that UT cannot tell them exactly how many admissions decisions race-based affirmative action actually altered, the reason they cannot get an answer is because they themselves have required UT to do things differently. And there was a purpose in that. The hope, I think, was that submerging race in this way would be cooler and less Balkanizing, a way of transforming the rhetoric and practice of diversity into something so elastic and inclusive that potential plaintiffs like Abigail Fisher would one day hear themselves in it as potential beneficiaries rather than as victims. However, submerging race is not the same as making it disappear. If we must litigate this issue until the day when college admissions officers reach that mythical Stephen Colbert/Chief Justice John Roberts vanishing point—the point at which even in the recesses of their own minds, they truly “stop discriminating on the basis of race”—then we will be litigating this issue for a lot longer than 25 years. Posted
by Joseph Fishkin [link]