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Supreme Court to Rule on Fisher v. University of Texas: Is Grutter In Trouble?

Eric Dunleavy
DCI Consulting

Art Gutman
Florida Tech

 
Earlier this year the Supreme Court agreed to hear Fisher v. University of Texas at Austin (UTA), which is another challenge to affirmative action and the use of race in higher education admissions. The named plaintiff is Abigail Fisher, a White female Texas resident who filed her complaint after she was not admitted to UTA. She contends that the university’s consideration of race as a part of its admission system was discrimination and that less qualified minority students were admitted because of their race.

This may be a serious test of precedents set in Grutter v. Bollinger and Gratz v. Bollinger, where the court upheld the University of Michigan Law School’s limited use of race in its admissions policies to increase diversity and struck down the undergraduate “point system” for considering race to increase diversity. Art devoted substantial space in this column back in 2002 and 2003 to those cases, and for good reason; those rulings were complex, have shaped many school admissions programs, and have had consequences for diversity in the workplace. The author of the Grutter ruling was Justice Sandra Day O’Connor, who retired and was replaced by Justice Samuel A. Alito. We will return to this and related issues later.

It is interesting to note that in late 2011 the state of Texas argued that the Supreme Court should deny review because Fisher is getting ready to graduate from LSU. In other words, Fisher’s admission decision was “moot” because she couldn’t become a Texas student anyway because she will have an undergraduate degree from LSU. So far the court has ignored this argument, perhaps because a ruling could have much broader implications beyond Fisher’s situation. As of right now it looks like oral arguments may not happen until the fall, perhaps right the middle of the election. A decision may not come until 2013, so we may be reviewing the actual ruling in this column a year from now.

We think that this case has similarities to the Grutter scenario. We also know that the Supreme Court has changed substantially since 2003. Could Grutter be in jeopardy and be potentially overturned? To consider that question we start with the facts of the Fisher case. We follow that up with a review of what the Grutter and Gratz rulings have taught us, and what was reaffirmed in the Supreme Court ruling in Parents v. Seattle School District (2007). We conclude with some relevant context, a consideration of the composition of the Supreme Court, and some speculation on where this case may go.

Facts of the Case

The challenge in this case is to the use of race as a factor in undergraduate admissions at the UTA. The District Court of the Southern District of Texas granted summary judgment for UTA in January of 2010 [2010 U.S. Dist. LEXIS 3478] and a three-judge panel of the 5th Circuit affirmed that ruling in January of 2011[631 F.3d 213]. Subsequently, a 16-judge panel of the 5th Circuit denied an en banc hearing in a narrow 9 to 7 vote on 6/17/11 [644 F.3d 301] and the Supreme Court granted certiorari on 2/21/12.

In 1997, the Texas Legislature instituted a “Top Ten Percent Law” mandating that Texas high school seniors be automatically admitted to any Texas state university if they are in the top 10% of their class. This is a race-neutral policy, and it increased the percentage of Blacks and Hispanics in the freshman class (as hoped and expected).

However, after the ruling in Grutter v. Bollinger (2003), UTA commissioned two studies to determine if they had a “critical mass” of underrepresented minority students, a concept supported in the Grutter ruling. The first study examined minority representation in classes of “participatory size”, defined as classes between 5 and 24 students. The data (for 2002) revealed that 90% of these classes had one or zero Black students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students. A subsequent analysis that excluded the smallest classes found that 89% had one or zero Black students, 41% had one or zero Asian-American students, and 37% had one or zero Hispanic students. In the second study, which surveyed students on their views of diversity on campus and in the classroom, minority students reported they felt isolated, and a majority of all students believed there was insufficient minority representation in the classrooms for “the full benefits of diversity to occur.” This research was much narrower than looking at representation at the university, school, or department level, where subgroup percentages are traditionally compared to identify potential disparities and the need for more diversity.

Citing these studies as evidence of a failure to achieve a “critical mass” of minority students in accordance with Grutter, UTA, in a 2004 proposal, recommended adding race as an additional factor in a larger (somewhat complex) admissions scoring index. This index would be used for all admissions that were not included in the 10% plan. That is to say, the vast majority of admission decisions were still race-neutral, but a small portion of admissions decisions would use the scoring index, which included race as a factor. More specifically, applicants are divided into three pools: (1) Texas residents, (2) domestic non-Texas residents, and (3) international students, and students compete for admission only in their respective pools. Texas residents are allotted 90% of available seats based on a two-tiered system in which the 10% law is applied first, and remaining seats are filled based on academic and personal achievement indexes. Admissions for domestic non-Texas residents and international students are based entirely on the Academic Index (AI) and the Personal Achievement Index (PAI).

The Academic Index (AI) uses standardized test scores and high school class rank. For those not in the top 10%, it is possible to be admitted based on the AI score alone. Those with low AI scores are “presumptively declined.” However, a member of the senior admissions staff reviews these files, and on some occasions, the presumptively declined applicant may receive a full review. The Personal Achievement Index (PAI) is based on three scores, one each for two required essays, and a Personal Achievement Score (not to be confused with the PAI) based on evaluation of the applicant’s full file. Each of these three components is rated on a scale of 1 to 6. Critically, the only place where race is considered is as one element of the Personal Achievement Score, and only if the AI scores are sufficiently high and the essays are well written. In short, the vast majority of students are admitted based on the 10% rule and the AI score, and only a small percentage of students (with sufficiently high AI scores and well-written essays) may have race treated as a factor for admission.

Interestingly, the appellants never alleged that UTA’s admissions policy is different from or gives greater consideration to race than the policy upheld in Grutter but, rather, questioned whether UTA needs a Grutter-like policy. More specifically, they raised three challenges: (1) that UTA “has gone beyond a mere interest in diversity for education’s sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve racial balancing”; (2) that it “has not given adequate consideration to available race-neutral alternatives”; and (3) that “minority enrollment under the Top Ten Percent Law already surpassed critical mass.” Each argument was rejected.

Interestingly, although the three-judge panel ruling was unanimous, two of the three judges had problems with the ruling (written by Judge Higginbotham). For his part, Judge King agreed with Higginbotham on how Grutter was applied but bemoaned the fact that the appellants did not challenge the “validity or the wisdom” of 10% law. For his part, Judge Garza opined that the Grutter ruling was a “misstep” but nevertheless agreed with Higginbotham’s view that the UTA plan was consistent with the Grutter ruling.

The appeals court concluded with the following:

A university may decide to pursue the goal of a diverse student body, and it may do so to the extent it ties that goal to the educational benefits that flow from diversity. The admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored—procedures in some respects superior to the Grutter plan because the University does not keep a running tally of underrepresented minority representation during the admissions process. We are satisfied that the University’s decision to reintroduce race-conscious admissions was adequately supported by the “serious, good faith consideration” required by Grutter….

Mindful of the time frame of this case, we cannot say that under the circumstances before us UT breached its obligation to undertake a “serious, good faith consideration” before resorting to race-conscious measures; yet we speak with caution. In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university’s race-conscious admissions program in perpetuity. Rather, much like judicial approval of a state’s redistricting of voter districts, it is good only until the next census count—it is more a process than a fixed structure that we review.”

Looking Back on Grutter and Gratz

Art previewed these cases in 2002 (http://www.siop.org/tip/backissues/ October02/pdf/402_059to068.pdf) and reviewed the Supreme Court rulings in 2003 (http://www.siop.org/tip/backissues/Oct03/pdf/412_117to127.pdf). It may be useful for readers to review these articles, particularly given the complex chronology of affirmative action rulings that started with Regents of the University of California v. Bakke (1977). Art focused on whether Bakke was good law via 14th Amendment strict scrutiny rules. That means first deciding if diversity is a compelling government interest and then, presuming it is, deciding further if the admissions plans at issue are narrowly tailored to that interest. Art suggested that a “nay” answer on compelling interest ends all diversity programs in higher education. In Grutter, the Supreme Court ruled that diversity was a compelling interest and the law school policy was narrowly tailored, supporting Bakke as good law. In Gratz, the undergraduate policy was deemed not to be narrowly tailored, and the compelling interest prong was not considered.

Recall that the Michigan law school plan combined objective variables (e.g., GPA & LSAT) with “soft” variables (e.g., recommendation letters, quality of undergraduate school, leadership, work experience, unique talents, and overcoming social or economic disadvantage). The law school wanted to achieve diversity in order to (a) make each class “stronger than the sum of its parts,” (b) prevent minority students from feeling “isolated or like spokespersons for their race,” and (c) prevent minority students from feeling “uncomfortable discussing issues freely based on their personal experiences.” The law school did not use a hard and fast objective rule for admissions and did not have a fixed percentage goal for the “critical mass.”

The undergraduate admissions plan was more rigid and used a “selection index” of 150 points, with 100 points required for admission. Up to 12 points were awarded for standardized scores; up to 98 points for GPA, quality of school attended, and strength or weakness of the curriculum; and up to 40 points for other factors. These other factors included up to 20 points for geographical location, alumni relations, outstanding essay, personal achievement, or leadership and service activity and up to 20 points for “miscellaneous” categories, including socioeconomic disadvantage, racial and ethnic minorities, athletic scholarship, and discretionary selection by the provost.
As Art described, Justice O’Connor was the swing vote in the 5–4 Grutter decision and was the architect of the ruling. Speaking for Breyer, Ginsburg, Souter, and Stevens, O’Connor concluded that “The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause” of the 14th Amendment (and other relevant statutes). Quoting routinely from Justice Powell’s ruling in Bakke, O’Connor explained in detail why the law school’s admissions program is narrowly tailored. Accordingly:

The Law School’s admissions program bears the hallmarks of a narrowly tailored plan. To be narrowly tailored, a race-conscious admissions program cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants....” Instead, it may consider race or ethnicity as a “plus” in a particular applicant’s file; i.e., it must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight....” It follows that universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admissions tracks.... The Law School’s program, like the Harvard plan approved by Justice Powell, satisfies these requirements. Moreover, the program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature in the application.

O’Connor also spent time on the race-neutrality issue, stating:

Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law school seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.... Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.... We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives.
One other point worth noting was in Justice Thomas’ dissent, which directly challenged Powell’s ruling in Bakke that diversity is a compelling interest and questioned the line between affirmative action and racial balancing. Thomas was the only justice who challenged the Bakke ruling. In addition, speaking for Scalia, Kennedy, and Thomas, Justice Rehnquist stated:

I agree with the Court that “in the limited circumstance when drawing racial distinctions is permissible,” the government must ensure that its means are narrowly tailored to achieve a compelling state interest. Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.”

The Gratz opinion was written by Justice Rehnquist and did not mention diversity as a compelling interest. However, the undergraduate plan was struck down because it was not narrowly tailored. In effect, the vote was 6–2 with one abstention. Speaking for O’Connor, Scalia, Kennedy, and Thomas, Rehnquist stated:

We find that the University’s [undergraduate] policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.

Rehnquist clearly noted that a “points plan” cannot “offer applicants the individualized selection process described in Harvard’s example” (i.e., the “Harvard Plan” cited by Justice Powell in the Bakke case). As Art described, Justice O’Connor wrote a separate concurrence to highlight the difference between the two admissions plans:

Unlike the law school admissions policy...the procedures employed by the...Office of Undergraduate admissions do not provide for a meaningful individualized review of applicants.... The Law school considers the various diversity qualifications of each applicant, including race, on a case- by-case basis.... By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant.

Justice Thomas also wrote a separate concurrence to note that the “State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.” Interestingly, Justice Stevens (for Souter) dissented, but he never directly addressed the UGA plan and instead argued that no plaintiffs had standing to sue because “neither petitioner has a personal stake in this suit for prospective relief.” This is likely why Texas asked the court to not review the case as it relates to Fisher graduating from another undergraduate institution. Of course, both Justices Souter and Stevens are retired from the court now. We revisit this issue later.
Justice Souter also wrote a separate dissent, and argued that the UGA plan “is closer to what Grutter approves than to what Bakke condemns.” More specifically:

Subject to one qualification...[in the]...selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell’s description of a constitutionally acceptable program; one that considers “all pertinent elements of diversity in light of the particular qualifications of each applicant” and places each element “on the same footing for consideration, although not necessarily according them the same weight”.... In the Court’s own words, “each characteristic of a particular applicant [is] considered in assessing the applicant’s entire application”.... An unsuccessful nonminority applicant cannot complain that he was rejected “simply because he was not of the right color;” an applicant who is rejected because “his combined qualifications...did not outweigh those of the other applicant” has been given an opportunity to compete with all other applicants.

Grutter was later supported in 2007 when the Supreme Court struck down two plans, one for high school enrollment (in Seattle, Washington) and one for elementary school enrollment or transfer between schools (in Jefferson County, Kentucky) in Parents Involved In Community Schools v. Seattle School District No.1 et al. This was the first test of Grutter and Gratz precedents.

Fisher v. Texas and The Current Supreme Court

If you read Art’s work in 2002 and 2003, you know that he wasn’t shocked that the Supreme Court affirmed Bakke, supported the Michigan law school plan, and struck down the undergraduate plan. Yet in commenting on the Parents ruling as support for Grutter, we mentioned the following: “Of course the counter argument is that if a dissenting justice retired and a replacement in agreement with the Roberts plurality emerged, it would be possible that Roberts’ view (that diversity as a compelling interest is limited to the “context” of higher education) could prevail. Of course, that is pure speculation….Clearly, and especially with the retirement of Justice O’Connor, Justice Kennedy has staked out a position as decision maker in future cases that could test diversity in education or the workplace. His position in Parents is consistent with his position in Grutter. He supported Justice Powell’s Bakke ruling but argued that the Michigan Law School admissions plan was not faithful to the Harvard Plan.
We know that Justices Thomas and Scalia are generally opposed to affirmative action. Since the Grutter ruling, Justice Alito has taken the place of Justice O’Conner, the architect of Grutter. Since then Justice John Roberts has also taken the place of Justice William Rehnquist. Justices Alito and Roberts likely have different perspectives on affirmative action as compared to the Justices that they replaced. It is also worth noting that Justice Kagan has recused herself from the case, (likely because she worked on it when she was Solicitor General), so only eight justices will hear it. Either way, five votes are still needed to reverse the 5th Circuit.
Given past rulings, there is little doubt that four justices will vote to reverse the ruling (Alito, Roberts, Scalia & Thomas) and three will vote to uphold (Breyer, Ginsberg & Sotomayor), leaving Justice Kennedy as the decisive vote. Many have noted that Kennedy was a dissenter in Grutter, and voted against the specific school plans in Parents v. Seattle School District (2007), implying that now that Justice O’Connor has left the Supreme Court, Grutter was a unique ruling that will never again be applied.

We suggest that Justice Kennedy’s approach may not be so clear. He is on record as believing that diversity is a compelling government interest. Moreover, in Grutter, Kennedy agreed with Justice Powell’s ruling in Regents v. Bakke (1978), but didn’t think the Grutter plan met that threshold. He made the same ruling in Parents, but he also provided several suggestions on how those plans could be narrowly tailored to meet the compelling interest of diversity.
If the Michigan law school admission system didn’t meet the Bakke threshold in the eyes of Justice Kennedy, will the UTA plan? Maybe. It may be a less race conscious plan as compared to the Michigan law school system. For example, in Bakke, Justice Powell offered the so-called “plus” system (where race is one of many plusses) for 14 out of 100 applicants to medical school. Here, the plus is applicable to a much smaller percentage of the applicants, because the vast majority of Texas students are accepted via the 10% rule. The vast minority of admission decisions include a consideration of the Personal Achievement Score, where race may play a role.

Conclusions

We see three possible outcomes to this case. First, there could be a 4–4 stalemate. If so, the implication is a 5–4 victory for diversity plans such as this one based on the likelihood that Justice Kagan would be the fifth vote in a follow-up case. This one depends entirely on whether Justice Kennedy will see the UTA plan as narrowly tailored in accordance with Justice Powell’s ruling in Bakke.

Second, there could be a 5–3 ruling in which UTA loses on both prongs of the strict scrutiny analysis. We think this is unlikely because it would imply a reversal of both the Bakke precedent and the Grutter ruling. The fact is that Justice Kennedy supported Bakke in Grutter (but didn’t like the way the plan was done) and not only supported diversity as a compelling interest but also went out of his way to show how the plans in Parents could be narrowly tailored.

Third, there could be 53 ruling in which diversity as a compelling interest is supported, but the UTA plan is struck down because it is deemed not narrowly tailored. This one also depends entirely on Kennedy and wouldn’t change much.

Recall that Art successfully predicted that Grutter would win and Gratz would lose. Despite that, we are not too keen on making a definitive prediction here. However, we do note that if the third outcome occurs (as in the Parents ruling), it could send a signal that although Bakke and Grutter are good law, the Supreme Court, at least as it is currently composed, will simply continue to defend diversity as a compelling interest, but never support a plan as being narrowly tailored. In view of Justice Kennedy’s proposal of a narrowly tailored plan in Parents, and in view (at least our view) of the UTA plan as more narrowly tailored than the Grutter plan, we give the first outcome a fighting chance.

References

Gutman, A. (2002). Affirmative action: What’s going on? The Industrial-Organizational Psychologist, 40(2), 59–68.
Gutman, A. (2003). The Grutter, Gratz, and Costa rulings. The Industrial-Organizational Psychologist, 41(2), 117–127.
Gutman, A., & Dunleavy, E. M. (2007). The Supreme Court ruling in Parents v. Seattle School District: Sending Grutter and Gratz back to school. The Industrial-Organizational Psychologist, 45(2), 41–49.

Cases Cited

Fisher v. University of Texas at Austin (2010) U.S. Dist. LEXIS 3478.
Fisher v. University of Texas at Austin 631 F.3d 213.
Fisher v. University of Texas at Austin 644 F.3d 301.
Gratz v. Bollinger (2003) 539 U.S. 306.
Grutter v. Bollinger (2003) 539 U.S. 306.
Parents Involved in Cmty. Schs. v. Seattle School Dist. No.1 (2007) 127 S. Ct. 2738.
Regents of the University of California v. Bakke (1978) 438 U.S. 265.