Archive | Fisher v. University of Texas

Another Odd Thing about that “Latino/a Law Professors” Letter

On Friday, I noted what I deemed to be a strange response from a self-described “group of Latino/a law professors” to a piece I wrote for Scotusblog on affirmative action and Hispanics after Fisher; strange primarily because I was addressing the diversity rationale for affirmative action, which is the rationale approved of by the Supreme Court, but the response only discussed other rationales, which seem to be plainly unconstitutional under current jurisprudence including Fisher, and thus only tangential to my piece.

The response also contains this line, which I didn’t pay much attention to: “Affirmative action attempts to remedy racism; the availability of this remedy for Latinos should not be attacked because there also exists some racism among Latinos, let alone among individuals who might conceivably be classed as Hispanics.” When I read this, I thought that given my paragraph that began, “Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims…” the professors were referring to the fact that there is a great deal of racism within Latin American society, with individuals of European descent often mistreating individuals of mixed-race, Indian, and African descent.

However, someone “in the know” has suggested to me that the letter was actually referring to George Zimmerman. I did reference Zimmerman in the introductory “hook” to my Scotusblog piece–it’s common with op-eds to try to open your piece with a “hook”, an allusion to a relevant current event so as to pique the readers interest.

But as I explained quite explicitly, the relevance of Zimmerman was that “the debate over how to categorize Zimmerman [white, Hispanic, or white Hispanic] exemplifies ambiguities in Hispanic identity, and therefore leads to some interesting questions regarding the future of affirmative action.” I neither suggested that Zimmerman exemplifies racism among “Latinos” or “people who might [...]

Continue Reading 0

Strange Response from “A Group of Latino/a Law Professors”

A self-described “group of Latino/a Law Professors” has published a strange response to my commentary on Hispanics and affirmative action after Fisher, published on Scotus blog, noted by me here, and followed up yesterday.

Why strange? Because the response has very little to do with my post. My post, being commentary on a Supreme Court case and not general musings on affirmative action, primarily was about whether using the the broad category of “Hispanic” makes sense under the diversity rationale endorsed by the Supreme Court in Grutter and left undisturbed by Fisher. I noted that “Hispanics” are an extremely heterogeneous group, including many people who by just about any measure other than affirmative action categories are considered to be white, such as descendants of immigrants from Spain, Sephardic Jews, Argentines of Italian descent, and so on.

Let’s recall that diversity is the ONLY rationale for affirmative action [preferences in universities] endorsed by the Supreme Court. A state university that relied on a “social justice rationale,” such as the desire to remedy past and present racism, would clearly be acting illegally under current law.

So I’m surprised to find that the professors’ response doesn’t address the diversity rationale at all. Indeed, the word “diversity” doesn’t appear in their response–perhaps because some of the signators have themselves been strong critics of this rationale.

Instead, the professors entire commentary is devoted to a defense of the notion that affirmative action for Hispanics is justified for “social justice” reasons: “The negative stereotypes and rampant discrimination create barriers across our society and in particular in the educational context impediments that affirmative action seeks to address….. Affirmative action attempts to remedy racism…. Affirmative action seeks to repair the ongoing harms directly attributable to past racism, and also responds to continuing discrimination [...]

Continue Reading 0

Brief Followup on Post on Hispanics and Affirmative Action after Fisher

I’ve said most of these things in previous posts, but judging from the comments, memories are short (and we get a lot of new readers the last week of the Supreme Court term), so let me reiterate: (1) I think private universities should be free to have whatever affirmative action policies they want, for whatever reasons they want [though I’d greatly prefer transparency to obfuscation–current law virtually requires obfuscation, as done many schools’ remarkably bad record at ensuring that their affirmative action admittees succeed]; (2) I think the diversity rationale for affirmative action is incoherent, and the examples I gave in my post suggest why. Because it’s incoherent, it shouldn’t satisfy strict scrutiny as required in Fisher, even though Justice O’Connor decided it does in Grutter. But I would still let private universities use this rationale if they so desired; (3) I think the “social justice” rationales for affirmative action–to redress past and current discrimination, but also to ensure that “out” groups have a place at the table, so to speak, because in-groups are prone to ignore their concerns unintentionally or otherwise, has some merit, especially with regard to African Americans. It also has the virtue of limiting the potential categories of groups that can seek affirmative action, which could prevent development of a broad ethnic spoils system. Unfortunately, the Supreme Court has ruled such considerations out as a justification for affirmative action; and (4) I think that some subgroups of the Hispanic population (among others) may very well qualify for affirmative action under the social justice rationale, but (5) it makes little sense for that purpose to give preferences to someone who is for all but affirmative action purposes white, but whose ancestors happened to speak Spanish.

UPDATE: Unlike Ilya, I also think that ten percent plans [...]

Continue Reading 0

Stuart Taylor’s Response to My Post on Prospects for Challenges to University Affirmative Action Policies After Fisher

Well-known columnist Stuart Taylor has posted a thoughtful response to my critique of his earlier post arguing that the prospects for future challenges to university affirmative policies after Fisher are bleak:

Ilya Somin has posted a critique of my Minding The Campus commentary worrying that the Supreme Court’s decision in Fisher v. University of Texas could have the paradoxical effect of entrenching racial preferences for decades.

Ilya makes reasonable points, and he may turn out to be right. I respectfully disagree, as explained below, with his contention that I was “off base” in saying that it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences….

As for “off base”: Ilya does not deny the factual accuracy of my statement that rejected students’ inability to know whether they would have been admitted but for racial preferences may be a major deterrent to reverse-discrimination lawsuits. Rather, he disputes my suggestion that this may be a major deterrent to suing.

In fact, it has already proved to be a strong deterrent. The proof is that during the more than 45 years since racial preferences in admissions got started, only five reverse-discrimination lawsuits (the first of which was dismissed as moot) have gotten to the Supreme Court. And very few have prevailed in lower federal courts.

Among the reasons for this paucity is the fact that neither Abigail Fisher nor any future plaintiff can ultimately win a remedy unless the courts end up deciding after years of litigation that she would have been admitted had race not been considered — an issue about which the rejected applicant has far less information than the university does.

Other deterrents to suing are the unlikelihood of a substantial damage award; the negative publicity, vilification,

Continue Reading 0

Will There be More Challenges to Affirmative Action Policies in the Wake of Fisher?

Unlike me, co-blogger David Bernstein and widely respected columnist Stuart Taylor believe that the Court’s recent decision in Fisher v. University of Texas was a setback for opponents of affirmative action. They agree that the Court’s ruling raised the legal standards that affirmative action programs must meet in order to survive judicial scrutiny. But they argue that this will not matter much because too few plaintiffs will challenge the policies. Taylor summarizes the reasons for this conclusion:

1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives…. (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences…. (3) Another deterrent to suing is the endless delay that is routine in major litigation…. (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

Taylor’s second reason is off-base. Rejected applicants disadvantaged by racial preferences are not required to prove that “they would have been admitted but for [those] preferences.” Abigail Fisher, Barbara Grutter, and Jennifer Gratz, among others, could not and did not prove any such thing. Yet they were able to bring their cases anyway. The applicable legal rule is that such plaintiffs need only prove that they were denied an equal chance to compete for admission regardless of race. As the Supreme Court ruled in the 1978 Bakke case:

E]ven if Bakke had been unable to prove that he would have been admitted

Continue Reading 0

Fisher is a Significant Loss for Opponents of Affirmative Action Preferences

Sure, the Court tightened the official standards for preferences. But judging from past experience, unless otherwise compelled by state officials in a few conservative states, university officials will ignore Fisher to the extent it conflicts with their current practices. The only way Fisher can then be enforced is through lawsuits over university policies, which are few and far between.

Stuart Taylor gives some reasons why:

(1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives. Suing has opened white plaintiffs such as Abby Fisher to hostile publicity and even vilification. Fisher was also opposed in the Supreme Court by a very wide array of major establishment institutions; (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences. While aggregate data suggest that many or most universities give black applicants a boost over whites equivalent to a full point of GPA, or 300 SAT points, and a larger boost over Asians, almost all universities cloak in secrecy how much weight they give to race; (3) Another deterrent to suing is the endless delay that is routine in major litigation. Abigail Fisher had long since graduated from Louisiana State University by the time the Supreme Court got around to deciding her case — by sending it back to the lower courts for more litigation! (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

I also recall

Continue Reading 0

Hispanics and Affirmative Action after Fisher

My commentary is up at Scotusblog. Here are the key paragraphs:

Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims, African slaves, immigrants from anywhere in the world, or any combination of these. Hispanics’ ancestors have come to the U.S. from any one of twenty-one very diverse Spanish-speaking countries, plus possibly Portugal, Brazil, and other countries, depending on exactly how the category is defined. So what exactly justifies singling out Hispanics for preferences, but not members of other groups?

In Grutter v. Bollinger, the Supreme Court took the racial and ethnic categories used by the University of Michigan Law School as a given, and never addressed why Hispanic ethnicity, but not other ethnicities, should count for affirmative action purposes….

In any event, the diversity rationale endorsed by Grutter fails to explain why a state university is permitted to give preferences to a Hispanic individual of European ancestry, or an American of Mexican descent whose family has lived in Texas since 1850 and is fully assimilated into American life, while denying such preferences to, say, a dark-skinned child of Arabic-speaking immigrants from Yemen. The one hundredth Hispanic admitted to a university freshman class as an affirmative action candidate would seem to add less ethnic or linguistic heritage diversity than the first Kazakh or Mongolian. Yet it’s permissible under Grutter to give only the former a preference to satisfy diversity goals.

Even though Hispanics are now the largest group that are eligible for affirmative action preferences, I’ve never heard a coherent explanation of why it satisfies equal protection standards for state universities to use Spanish-speaking ancestry, as such, as a proxy for “diversity”–if anyone has one, please explain in the comments. Consider this: if Mitt Romney’s grandparents had bothered to learn Spanish and conveyed that language to [...]

Continue Reading 0

Competing Interpretations of Fisher

Commentary on today’s Supreme Court decision in Fisher v. University of Texas seems to be divided between those who believe, as I do, that the ruling tightens judicial scrutiny of university affirmative action plans, and those who contend it will make no real difference.

Amy Howe of SCOTUSblog suggests that “affirmative action survives at least in theory…, but will be far more difficult to implement in practice.” Bill Mears of CNN reaches a similar conclusion, and affirmative action opponent Roger Clegg claims that the ruling will be “helpful” to litigators seeking to strike down racial preferences. By contrast, Gerard Magliocca believes that Fisher “said nothing,” and UC Irvine Law School Dean Erwin Chemerinsky concludes that it just reaffirms Grutter and other previous decisions.

I think the latter interpretation of Fisher is difficult to defend. It’s true that the Court did not hold that all affirmative action for diversity purposes is unconstitutional, and claimed that its decision was completely consistent with Grutter. On the other hand, as I explained previously, it ruled that affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment, and should be judged by the same standards as racial preferences in non-university settings (where the Court tends to be very tough). This is a major change from Grutter’s extension of a substantial “degree of deference” to university’s expertise. Essentially, in the opinion he wrote today, Justice Anthony Kennedy adopts the legal rule advocated in his Grutter dissent, where he took the majority to task for its “perfunctory” review of the University of Michigan Law School’s affirmative action program, and for “deferring to the law school’s choice of minority admissions programs.” Today’s decision holds that a university “receives no deference” on such questions.

To determine the [...]

Continue Reading 0

Fisher, the Texas Ten Percent Plan, and “Race-Neutral” Alternatives to Affirmative Action

When it was litigated in the lower courts, most observers thought that the most distinctive aspect of Fisher v. University of Texas is that the racial preferences used in its affirmative action plan were grafted on top of the Texas Ten Percent Plan, which guarantees any Texan admission to the UT so long as they were in the top ten percent of their high school class. This plan ensured that the university had a large number of black and Hispanic students, because many high schools are overwhelmingly minority. While formally “race neutral” the Ten Percent Plan was clearly enacted by the state legislature for the purpose of increasing the percentage of African-American and Hispanic students after the Fifth Circuit court of appeals struck down the University of Texas’ affirmative action program in the 1996 Hopwood case. Before the Supreme Court decided Fisher, I worried that it would validate the Ten Percent Plan in the process of striking down the additional preferences placed on top of it. For reasons I discussed here, the Ten Percent Plan is not really race neutral, and is in many ways worse than conventional affirmative action programs.

Today’s Supreme Court majority opinion does not directly address the question of whether the Ten Percent Plan is genuinely race neutral or not. Justice Kennedy emphasizes that:

Narrow tailoring…. requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…, [which] involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications….The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have [...]

Continue Reading 0

Preliminary Thoughts on Fisher v. University of Texas

Today’s Supreme Court decision in Fisher v. University of Texas is a significant victory for opponents of affirmative action in higher education. Formally, the 7-1 ruling written by Justice Anthony Kennedy only remands the case to the court of appeals for consideration under the “strict scrutiny” standard, which requires the government to show that racial classifications are “narrowly tailored” to the achievement of a “compelling state interest.” But it also makes it much more difficult for state universities to prove that affirmative action plans meet that standard. To understand why, we need to compare today’s ruling to the 2003 case of Grutter v. Bollinger, the leading previous Supreme Court decision on the subject.

Grutter ruled that affirmative action programs in higher education have to meet strict scrutiny, but also concluded that “diversity” is a compelling state interest. Most importantly, it held that in considering whether an affirmative action program meets the narrow-tailoring requiring, courts should give universities’ judgment about the amount of racial preferences needed to promote diversity “a degree of deference.” Such questions, the Court then said, are “complex educational judgments in an area that lies primarily within the expertise of the university.” By contrast, today’s majority opinion is much less deferential:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. [emphasis added]

The Court therefore vacated the Fifth Circuit opinion, which gave the University of Texas substantial deference in determining how much racial preference was needed to achieve the goal of educationally valuable [...]

Continue Reading 0

Chemerinsky on Color Blindness


Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to [...]

Continue Reading 0

The Sad Irony of Affirmative Action

Gail Heriot has a powerful affirmative action piece over at National Affairs. Her piece elaborates on the important work of Richard Sander, who guest blogged here last year. They contend — and offer compelling empirical evidence — that affirmative action affirmatively harms its supposed beneficiaries. In the last paragraph, Gail wonders whether this argument will affect the Court’s analysis in Fisher v. Unviersity of Texas. For what it’s worth, I think that Justice Kennedy, at least, will find this point very compelling indeed. [...]

Continue Reading 0

Richard Kahlenberg on Racial Preferences and Gay Marriage

In a recent post, I wrote about the growing number of people who oppose racial preferences in education, while also supporting gay marriage. Richard Kahlenberg, a long-time advocate of replacing race-based affirmative action with socioeconomic affirmative action, can be added to the list:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated.

I don’t agree with all the points Kahlenberg makes. Not every possible argument for [...]

Continue Reading 0

Opposing Affirmative Action While Supporting Gay Marriage

In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same [...]

Continue Reading 0

Just How Unpopular are Race Preferences in Admissions?

This unpopular: At Brown University, long known for being among the most politically correct universities in the country, and where Obama supporters outnumber Romney supporters by better than 9 to 1, only 35% of students think the university should consider race in student admissions or in faculty hiring. H/T Eric Muller, who provided a link to the poll via Facebook. I wonder if there is any other political issue in which the (official) views of the uber-elites–Fortune 500 executives and general counsels, university leaders, military leaders, elite law firms, and so on–is so greatly at odds with public opinion. [...]

Continue Reading 0