FISHER V. TEXAS Merit Brief

In Fisher v. University of Texas (2016), the Supreme Court in a 4–3 ruling affirmed the use of race-based university admissions policies. Below is a merit brief (written before the ruling) on behalf of the petitioner, Fisher, that explains why the Court should declare such policies unconstitutional.

Summary:

In 2008, Abigail Fisher applied to the University of Texas at Austin and was denied admission. Fisher, a white female, did not qualify under Texas’ Top 10% Plan which guarantees admission to all in-state, graduating high school seniors who are in the top 10% of their class. Neither was Fisher admitted into one of the remaining spots for which race was considered during the selection process. Fisher sued the university, claiming the use of race in the admissions process violated her constitutional right of Equal Protection under the 14th Amendment. In District Court, the university’s procedure was deemed constitutional, and likewise in the U.S. Court of Appeals. The case came before the Supreme Court in 2013. The Court ruled that the appellate court was required to — but did not — apply strict scrutiny to judge the constitutionality of such race-conscious procedures. The case was remanded for further argument, during which the appellate court deemed satisfactory the claim that educational diversity was a compelling interest and was being addressed through narrowly tailored means. Upon appeal, the case has again reached the Supreme Court where it awaits a decision.

Statement of the Argument:

When government policy incorporates race to judge one person from another, such policy is, by nature, inherently suspect. It must pass the test of strict scrutiny, provided that there is a crucial interest at stake that led to its creation. The University of Texas’ claim is that educational diversity is a compelling interest and that remedial measures to ensure a “critical mass” of minority students are constitutionally protected. We disagree. The 14th Amendment prohibits special treatment of individuals based on race, and a government action designed to remedy past racial discrimination of certain groups — an action that is itself race-conscious — is a clear contradiction of the Equal Protection Clause. It follows that the rulings in Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) mistakenly overlooked one of the simplest clauses in the Constitution, thereby encouraging the implementation of policies that unlawfully consider race — justified, to some, through imprecise, hypothetical, and backwards reasoning. What has resulted from these prior decisions is a system of thinly veiled government-sponsored discrimination under which universities are trusted to operate “in good faith” — a blank check to consider race as they see fit. This is a dangerous precedent that must be reversed. Discrimination by race — invidious or not — has no place in higher education.

Argument:

The debate over race-conscious admissions procedures at the University of Texas existed well prior to Abigail Fisher’s suit. Hopwood v. Texas (1996) was the first successful challenge to affirmative action policy since the Bakke ruling permitted it, provided that neither explicit race-based quotas nor a separate admissions track for minorities existed. In Hopwood, four white students who had been rejected by the university challenged its policy on equal protection grounds. They succeeded. The Fifth circuit court determined

the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school

(Hopwood, 1996)

Having determined that diversity in education was not a compelling interest, the Hopwood decision effectively ended the university’s race-conscious admissions decisions. In response, the university in 1997 implemented a Personal Achievement Index which takes into account extraneous factors (as opposed to quantifiable criteria like SAT scores) such as background, family upbringing, community service, and so on (Fisher v. Texas, U.S. Court of Appeals, Fifth Circuit, 2011). Although race-neutral on paper, the PAI was designed to increase minority enrollment in light of Hopwood. In addition to PAI, the University implemented the Top 10% Plan which requires admission for each in-state high school senior who graduates in the top 10% of their class. After its first year in effect, the minority student body population substantially increased, and it continued to do so in subsequent years. In 1997, 50 African Americans had been admitted under the Top 10% Plan; in 2002, the number more than tripled to 156 (Fisher v. Texas, Reply Brief for Petitioner, 2015). In 2004, the last year before the Grutter decision re-opened the doors to explicit race-based policies, 77% of African Americans and 78% of Hispanics were admitted under the Plan (Fisher, 2011). This initiative on its own was an effective and legal means of diversifying the school’s demographics because it relied on individual accomplishments rather than extraneous and superficial factors.

After receiving clearance through the Grutter decision, however, the university did not cease its quest to fulfill a vaguely articulated notion of a “critical mass” of minority students. It commissioned two studies to determine whether such a mass existed. A survey of students found that minorities still felt isolated and underrepresented, despite the advancements made through the race-neutral Top Ten Percent Law and the PAI. What soon followed was “Proposal to Consider Race and Ethnicity in Admissions,” a publication whose authors claimed that diversity 1) breaks down stereotypes, 2) promotes cross-racial understanding, and 3) prepares students for an increasingly diverse work environment (Fisher, 2011). In Grutter, Justice O’Connor’s majority opinion declared that these benefits of diversity were “substantial” and “real.”

In reality, the University’s justification for diversity falls well short of a compelling state interest. Nowhere in its case does it provide anything other than rhetorically pleasing phrases that it expects will amount to a legal justification for its policy. Despite what the University argues, cross-racial understanding is not such a necessary component of the educational process that the state needs to include race in order to facilitate it. There are many other areas of life in which cross-racial understanding can take place, like sports clubs, political groups, one’s work environment, and in day-to-day living. In short, there is no compelling interest in regards to cross-racial understanding because it is something that individuals can readily achieve on their own.

Furthermore, the notion of “critical mass” is especially troubling. How is one to judge whether such a balance in the student body has been achieved except through hard numbers, keeping in mind that quotas, as ruled in Bakke, are unconstitutional? The University of Texas, like the University of Michigan in the Grutter case, has consistently failed to give a satisfactory answer to this question. In Grutter, the Court “recounted how school officials had described ‘critical mass’ only through abstract concepts such as ‘meaningful numbers,’ ‘meaningful representation,’ and ‘a number that encourages underrepresented minority students to participate in the classroom and not feel isolated’” (Fisher, 2011). Are we supposed to believe that as long as a minority group of students feels isolated, that that qualifies as a compelling interest for the state to disregard a colorblind Constitution? Such an unprincipled notion is far too arbitrary to have any weight in this argument. Yet despite this glaring fault, prior rulings like Grutter have in effect given free rein for universities to determine at their own discretion when such a demographic balance has been achieved.

Judicial deference regarding a demographic balance is also a faulty precedent to set because a university becomes its own judge as to the duration of policies designed to achieve it. In Fisher v. Texas (2011), the appellate court found that the university admittedly “has no set date by which it will end the use of race in undergraduate admissions.” Instead, every five years it reviews the need for race-conscious measures. It is said that this process is formal, but the specifics are at the university’s discretion. The bottom line is that reconsidering the continued use of affirmative action programs only twice per decade is unreasonable well into the 21st century. In Grutter, Justice O’Connor wrote: “We take the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable.” (qtd. in Grutter). That time is now.

The fact that previous courts enabled race to be considered at all in this arena opened up several pathways for abuse. One such example is the treatment individuals as token spokespeople for their race. Grutter and Bakke mistakenly assumed that racial diversity must lead to viewpoint diversity. In the racial gerrymandering case Miller v. Johnson (1995), the Court declared that the Equal Protection Clause forbids “the demeaning notion that members of the defined racial groups ascribe to certain ‘minority views’ that must be different from those other citizens” (qtd. in Fisher, 2011). Another abuse is borne out of patronization; some feel it imperative to give minorities a stepping stool based on the presumption that they will constantly be inadequate as individuals. The ruling in Adarand Constructors, Inc. v. Peña (1995) declared that policies grounded on the presumption of societal disadvantage due to race alone violate the Equal Protection Clause. The ruling in a similar case, City of Richmond v. J.A. Croson Co. (1989), summed up the main problem with such policies: “The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Taken altogether, these cases show how unreasonable it is for the standard of judicial review to fluctuate based on the race of whoever is affected. There can be no picking and choosing as to who receives preferential treatment, as that runs contrary to the letter of the law.

There are plenty of other markers of viewpoint diversity besides race. “Specific hardships overcome, extensive travel, leadership positions held, volunteer and work experience, dedication to particular causes and extracurricular activities” are “far more likely to translate into enhanced classroom dialogue than a blanket presumption that race will do the same” (Fisher, 2011). Universities will more effectively select individuals whose characteristics they seek through these race-neutral means. The notion that minority individuals, because of their racial status, are inherently disadvantaged and will have a viewpoint inexpressible by others shows the fundamental contradiction that lies at the heart of the University’s mission: to eradicate judgments based on race, it makes judgments based on race. In the eyes of the Constitution, discrimination today in the name of diversity is on par with discrimination yesterday in the name of superiority.

The University of Texas’ supposedly benign racial classifications are illegitimate especially when we consider how the Grutter ruling found no fault with attributing a “plus” factor to an individual’s race. If two identical candidates, one white and one black, apply for admission, then according to university policy, the latter will obtain an advantage because of their race. This policy, then, is merely a thinly veiled, unjustifiable quota by another name. Neither viewpoint diversity nor a remedy for past discrimination (proven or not) against an individual’s ancestors can make it right. The university claims that race is only part of a holistic analysis. But for it to be considered in the first place runs contrary to the plaintiffs’ position in the landmark school desegregation case Brown v. Board of Education of Topeka in 1954. As they wrote in their brief: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race” (qtd. in Seattle, 2007). The “plus” factor qualifies as a type of differential treatment; how can it not? Whether it is part of a holistic character analysis is simply irrelevant.

Furthermore, in Parents Involved in Community Schools v. Seattle School District №1 (2007), a concurring Justice Kennedy wrote that, on racial balancing, “individual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest” (Seattle, 2007). Even if the University of Texas case qualifies as a compelling interest, then this manner of classifications was not a last resort. In addition to the rational suggestions for achieving diversity mentioned above, recall the Personal Achievement Index of the university’s admissions program as well as the Top 10% Plan. Hard data prove that each of these methods benefitted minorities without on their face designed to do so. Hard data make these race-neutral methods more valid than race-conscious ones necessitated by a perceived lack of “critical mass,” which is a main tenet of the University of Texas’ argument but is also a measuring stick that ebbs and flows like the tide.

Conclusion:

In the university admissions process, corrective racial balancing to right past wrongs is no less offensive to the Equal Protection Clause than taste-based discrimination. As Justice Scalia wrote in the Adarand decision, “Under our Constitution there can be no such thing as either a creditor or a debtor race.” One year later, the ruling in Hopwood uprooted race-conscious practices, having seen through the opposition’s smoke-and-mirrors argument that tried to legitimize race based judgments. The Court then erred in the Grutter decision, reversing course by permitting universities to, “on good faith,” pursue an agenda that cannot reasonably be defended by the claim that having a “critical mass” of minorities, remedying past injustices and requiring educational diversity are compelling government interests. The University of Texas simply cannot carry its strict scrutiny burden in light of the fluidity of its methods of operation.

Apart from a constitutional matter, this case is also about basic human equality. This means judging people as individuals, not as token representatives of a larger group of which they have no control of being a member. This means using thoughtful, tested, and well-measured solutions that go to the root of the problem, not superficial proposals that essentially take into account whether someone is unlikely to wear sunscreen. This means making an even playing field through equality of opportunity, not manipulated outcomes. If a man injures his right foot, does he out of pity choose to also injure his left? As a country, we need both feet to move forward.

Cited Cases

Adarand Constructors, Inc. v. Peña, 1995

Brown v. Board of Education of Topeka, 1954

City of Richmond v. J.A. Croson Co., 1989

Fisher v. Texas, 2011

Fisher v. Texas [Reply Brief for Petitioner, November 25, 2015]

Grutter v. Bollinger, 2003

Hopwood v. Texas, 1996

Miller v. Johnson, 1995

Parents Involved in Community Schools v. Seattle School District №1, 2007

Regents of the University of California v. Bakke, 1978