Fifth Circuit Court of Appeals Upholds University of Texas Affirmative Action Admissions Program

In yesterday’s opinion in Fisher v. Texas, the US Court of Appeals upheld a University of Texas affirmative action program in admissions, applying the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that racial diversity in higher education is a “compelling state interest” justifying the use of racial preferences to ensure that there is a “critical mass” of minority students. There is a concurring opinion by Judge Emilio Garza that agrees with the majority’s application of Grutter, but also enumerates Grutter’s many shortcomings and urges the Supreme Court to overrule it. I think there is in fact a decent chance that the Supreme Court will take this case and either overrule or at least cut back on Grutter. Since 2003, Grutter author Justice Sandra Day O’Connor has been replaced by Samuel Alito, a justice unlikely to support the “diversity” rationale. Three other justices have been replaced by new justices whose views on affirmative action are similar to their predecessors’. Since Grutter was a 5-4 decision, the switch from O’Connor to Alito might determine its fate if the issue returns to the Supreme Court.

Fisher is particularly interesting in light of the fact that the Fifth Circuit upheld the program despite the fact that the Texas Ten Percent Plan (which gives automatic admission to any student who graduated in the top 10% of his or her high school class) had already significantly increased the percentage of black and Hispanic students at the University of Texas. In this 2006 post, I argued that the Ten Percent Plan is much more objectionable than traditional affirmative action, even though it is formally “race neutral.” Since then, new research has confirmed the anecdotal data I cited indicating that the ten percent plan creates perverse incentives for students to choose poor quality schools in order to increase their chances of getting into the top ten percent.

My own view of affirmative action is almost the exact opposite of that adopted by the Supreme Court in Grutter. I am skeptical of the diversity rationale embraced by O’Connor, but have a measure of sympathy for the compensatory justice rationale that she and the Court rejected. I outlined these views in more detail here, here, and here.

Unfortunately, I am going to be very busy over the next few days, so probably won’t have much opportunity to blog about this issue. But I did want to offer these few thoughts, and then leave the field open to others. Some of the other Conspirators have much greater expertise on affirmative action than I do, and I hope they will offer some commentary of their own.

NOTE: As longtime VC readers know, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him, and I don’t think this connection has any real impact on my view of the issue. Still, I thought I would point it out just in case.

From my days on the Fifth Circuit, I am also acquainted with Judge Garza, who is one of the smartest and best-prepared judges I have ever met. Whether it was appropriate for him to criticize a Supreme Court decision in his concurring opinion is a question I leave to others. I will note that Garza’s action is far from unprecedented. A number of other well-known federal judges have done similar things, including Richard Posner in State Oil v. Khan, where he successfully urged the Court to overturn an important antitrust precedent that he denounced as “”unsound when decided,” “moth-eaten” and “increasingly wobbly.”

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