Last week, a three-judge panel of the Fifth Circuit Court of Appeals handed down a decision supporting a racial affirmative-action program at the University of Texas. Today, a New York Times editorial applauded the decision and concluded, “This ruling should give confidence to all universities about seeking diversity and merit.”
Far from giving confidence, however, the decision may well have set the stage for a U.S. Supreme Court ruling that will severely undercut, if not overturn, the 2003 Grutter v. Bollinger decision affirming the use of race in admissions.
In the Fifth Circuit case, Fisher v. Texas, white plaintiffs challenged the use of race in admissions, arguing that Texas’s Top 10 Percent plan—which automatically admits those in the top 10 percent of their high school class—creates sufficient racial diversity by itself. Plaintiffs noted that using race-blind criteria produced a class that was 4.5 percent African-American and 16.9 percent Hispanic in 2004, so the subsequent reintroduction of race on top of the Ten Percent plan is unconstitutional. (In Grutter, a law-school class that ranged between 13.5 and 20.1 percent minority was considered to have achieved a “critical mass” of such students.)
On the surface, the three-judge Fifth Circuit panel decision was unanimously supportive of the University of Texas, but as Peter Schmidt noted in The Chronicle, “the judges were deeply divided in their reasoning.” In particular, Judge Emilio Garza’s opinion, though technically a “special concurrence,” was highly critical of affirmative action, calling it unnecessary. He noted that in the 2008 admissions cycle, of the 363 African American freshmen from Texas admitted and enrolled, 305 were the product of the Top Ten Percent plan, and just 58 were admitted through merit or a combination of merit and race. For in-state Hispanics, 1,322 were admitted through the Top Ten Percent plan and just 158 through merit or a combination or merit and ethnicity. He concluded, “the University of Texas’s use of race has had an infinitesimal impact on critical mass in the student body as a whole.” The finding is important because the Supreme Court used the minimal impact of race in K-12 integration plans in Louisville and Seattle to suggest the use of race was not really necessary.
Judge Garza’s opinion is replete with quotations from decisions by Justice Anthony Kennedy, the new swing vote on the Supreme Court. Garza homed in on Kennedy’s 2007 declaration that the individual classification of students by race should be used only as “a last resort.” Kennedy notably dissented in Grutter, saying the Court should “force educational institutions to seriously explore race-neutral alternatives.”
Garza calls for the U.S. Supreme Court to overturn Grutter, but it seems more likely to me that while the conservatives (Justices Roberts, Thomas, Scalia, and Alito) might be willing to take that step, Justice Kennedy would be more comfortable gutting Grutter, without overturning it, by vigorously enforcing the decision’s requirement to look to alternatives before using race. The practical implication would be for universities to earnestly employ class-based affirmative action and top-percent plans, reserving race for extreme cases.
It is telling that the Center for Equal Opportunity’s president, Roger Clegg, a strong opponent of affirmative action, said he saw the Fifth Circuit’s Fisher decision as positive in several respects. The division within the panel invites a resolution from the Supreme Court, he argued. The loss for the plaintiffs assures that the case will be appealed to the Supreme Court. (Had Texas lost, it might have declined to appeal for fear of setting a negative national precedent in the Supreme Court.) And the Circuit Court decision came quickly, increasing the chances that the Supreme Court, in its current conservative makeup, will hear the case.
All of this suggests that the survival of Grutter is in serious question. Those who care about diversity should begin their contingency planning now, exploring race-neutral alternatives that will reach the sorts of economically disadvantaged populations that universities should have been pursuing all along.