Archive | Fisher v. University of Texas

The Military Rationale for Affirmative Action in College Admissions

In the recent oral argument in Fisher v. University of Texas, and in his amicus brief on behalf of the United States, Solicitor General Donald Verrilli emphasized the military rationale for affirmative action. Without racial preferences in college admissions, we will not have an adequate supply of minority officers in the armed forces, which would undermine military efficiency. As the brief puts it:

Military leaders have concluded that an officer corps that is markedly less diverse than the enlisted ranks, and that is unattuned to the diverse perspectives of those they must lead, can undermine the military’s combat readiness. Fostering a pipeline of well-prepared and diverse officer candidates is therefore an urgent military priority. That military policy judgment reflects the lessons of actual battlefield experience during the Vietnam War when the disparity between the overwhelmingly white officer corps and the highly diverse enlisted ranks “threatened the integrity and performance” of the military.

The same argument played an important role in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, which ruled that racial preferences can be used to promote diversity in college admissions:

[H]igh-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious

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Thoughts on the Oral Argument in Fisher v. University of Texas

Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter –

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now –

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor…

Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is [...]

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Here’s Where the University of Texas Loses in Fisher

From the transcript:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

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Thoughts on Fisher v. University of Texas

I have little to add to my previously posted on thoughts on Fisher v. University of Texas, the major affirmative action case that the Supreme Court is about to hear. But here are some links to earlier posts on the subject that might interest readers who follow the issue.

Here is my initial post about the Fifth Circuit decision that the Supreme Court is now likely to overrule.

In this post, I explained why the Fisher case poses a stark conflict between the “diversity” and compensatory justice rationales for affirmative action, and why the former is extremely dubious. I also highlighted the Texas affirmative action program’s dubious treatment of Asian-American applicants.

In February, I described my fear that the Fisher case could turn out to be a Pyrrhic victory for affirmative action opponents if the Court ends up invalidating all or most explicit affirmative action, but endorses “race-neutral” subterfuges such as the Texas Ten Percent Plan, which are often worse than traditional affirmative action. Such an outcome is also likely to reduce the transparency of affirmative action policies, for reasons I discussed here.

Most recently, I described why the originalist case for affirmative action is a lot weaker than proponents believe.

Overall, I think the Court should probably strike down the Texas plan. But I have serious concerns about the reasoning that it might adopt in reaching that conclusion. And I do not believe that it should categorically forbid all affirmative action policies, especially those genuinely aimed at compensating victims of past racial injustice. [...]

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The Novelty of Fisher v. University of Texas

The Supreme Court is hearing oral arguments in the Fisher v. University of Texas case tomorrow morning, so I thought I would republish here the essay I wrote for Scotusblog a while back:

I recently attended a panel discussion on Fisher v. University of Texas at an academic conference.  Each panelist began his remarks by acknowledging America’s increased ethnic diversity.  Yet the remarks focused almost entirely on the perceived benefits (or lack thereof) of affirmative action preferences for African Americans, and the perceived justice (or injustice) of disadvantaging or inconveniencing whites to provide those benefits.

America’s other racial and ethnic groups were ignored.  There was nary a mention, for example, of Hispanic Americans, who are now more numerous than African Americans and are the primary beneficiaries of affirmative action at the University of Texas-Austin, where they outnumber blacks by more than four to one.  Also ignored were Asian Americans, who constitute around six percent of the U.S. population and who are significant losers from race-conscious university admissions policies, but who benefit from racial preferences in other contexts, such as contracting set-asides.


The panel was no anomaly.  Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans.  This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds.  Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in [...]

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Originalism and Affirmative Action

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “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.” [emphasis added].

Beginning with the famous case [...]

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Fisher v. Texas and the Future of Affirmative Action

My contribution to Scotusblog’s symposium on Fisher v. Texas can be found here. An excerpt follows.

Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans. This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds. Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in the 2003 Grutter case….

Nevertheless, and despite the fact that African Americans are a shrinking minority of those eligible for affirmative action preferences, the underlying ideological justification for affirmative action preferences, especially on university campuses, remains to redress past and present discrimination against African Americans. (And, to put my own cards on the table, like most academics I find this rationale much more persuasive than I find the diversity rationale. Few law professors, at least, really think that the primary justification for university affirmative action programs is that they make campus life more interesting for white students.)…

Fisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity” [because Texas’s matriculants were about 40% “minority” without racial preferences]; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.


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Affirmative Action, Transparency, and Fisher v. Texas

Affirmative action isn’t exactly an issue that brings people together across ideological lines. It’s a divider, not a uniter. But there is considerable cross-ideological agreement on one point: if we are going to have racial preferences for minorities, it’s better to be transparent about it. In the recent SCOTUSblog symposium on the upcoming Fisher v. University of Texas Supreme Court affirmative action case, both Vik Amar (a defender of affirmative action), and leading critics Rick Sander and Stuart Taylor seem to agree on this point. Amar points out that there is no good reason why opaque racial preferences should be considered more constitutionally permissible than transparent and clear ones, despite some previous Supreme Court decisions suggesting that possibility. Sander and Taylor are more unequivocal in advocating transparency:

The single most important step forward is to adopt a comprehensive system of disclosure. The Supreme Court could mandate that any university that wishes to take the race of students into account in admissions must make its system of preferences (including legacy and athletic preferences) and their consequences transparent both to applicants, to help them make more informed decisions, and to the public, so that researchers, legislators, the media, the courts, and all other citizens can evaluate the accuracy and completeness of the information provided to applicants.

Unfortunately, however, as Amar explains, the most likely outcome of this case is a decision that reduces transparency rather than increases it. That’s because key swing voter Justice Anthony Kennedy is likely to write an opinion striking down the University of Texas program in part because racial “diversity” is better attained through “race-neutral” mechanisms like the Texas ten percent plan, which requires state universities to automatically admit any Texas applicant who was in the top ten percent in their high school class. Although formally neutral, this [...]

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Do Law Schools Consider Applicants “Holistically”?

Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas.  The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.

The oddity is that law schools already mostly use a rote admissions system.  The brief argues in its introduction as follows:

To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage.  Instead, following this Court’s guidance in  Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome.  A mechanical admissions process would render such criteria irrelevant.

The brief later elaborates on this point in great detail.  I really don’t know how Dorf and his co-authors can claim this.  It’s common knowledge that law school admissions at the vast majority of law schools comes down almost entirely to GPA and LSATs, with allowances for affirmative action preferences, relatives of generous alumni, and, at state universities, for politically connected applicants.  This was largely true even when I went to law school over twenty years ago, but concern over U.S. News rankings, which heavily weight GPA and LSAT, have made it even more so.

Let’s say you’re [...]

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The Originalist Case for UT in the Fisher Case Falls Short

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici.  The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans.  The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief’s citations.  So let’s assume that not just the brief’s facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate.  It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation.  None of the legislation in question grants authority to states to engage in race-conscious legislation.  In Fisher the underlying issue is whether a state university may engage in race-conscious admissions.  The authors not only don’t defend, but don’t even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn’t think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered [...]

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Asian-Americans, Affirmative Action, and Fisher v. Texas

The Chronicle of Higher Education reports that several Asian-American groups have filed an amicus brief opposing the University of Texas’ affirmative action program, which is being challenged in Fisher v. Texas, an important affirmative action case before the Supreme Court:

A brief filed Tuesday with the U.S. Supreme Court seeks to shake up the legal and political calculus of a case that could determine the constitutionality of programs in which colleges consider the race or ethnicity of applicants. In the brief, four Asian-American organizations call on the justices to bar all race-conscious admissions decisions, arguing that race-neutral policies are the only way for Asian-American applicants to get a fair shake.

Much of the discussion of the case has focused on policies that help black and Latino applicants. And the suit that has reached the U.S. Supreme Court was filed on behalf of a white woman, Abigail Fisher, who was rejected by the University of Texas at Austin.

But the new brief, along with one recently filed on behalf of Fisher, say that the policy at Texas and similar policies elsewhere hurt Asian-American applicants, not just white applicants. This view runs counter to the opinion of many Asian-American groups that have consistently backed affirmative action programs such as those in place at Texas….

The brief filed Tuesday on behalf of Asian-American groups Tuesday focused less on the Texas admissions policy than on the consideration of race generally in college admissions. “Admission to the nation’s top universities and colleges is a zero-sum proposition. As aspiring applicants capable of graduating from these institutions outnumber available seats, the utilization of race as a ‘plus factor’ for some inexorably applies race as a ‘minus factor’ against those on the other side of the equation. Particularly hard-hit are Asian-American students, who demonstrate academic excellence at

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Elizabeth Warren and Fisher v. University of Texas

At least one point of interest having nothing to do with Warren herself has arisen from the controversy over Massachusetts Senate candidate’s Elizabeth Warren’s dubious self-identification as “Native American”, and whether she so self-identified to position herself to be a beneficiary of affirmative action.

One of Warren’s defenders, a law professor at the University of Chicago, formerly of University of Texas, claims that as a long-time member of Texas’s hiring committee he knows that Texas (Warren’s first “big-name” law school job), like other top law schools, is completely uninterested for affirmative action purposes in Native American heritage. He added that co-blogger and Warren critic Todd Zywicki would have known this if Todd had “participated in hiring at an elite law school.”

The argument that elite schools don’t care about Native American ancestry, even if true (and my own guess is that this varies considerably depending on the circumstances at each school), doesn’t help Warren–until she “participated in hiring at an elite law school” she would also have been ignorant that claiming Native American status would not be helpful to her.

Moreover, from a non-insider’s perspective, there’s no reason to think it wouldn’t. I can’t think of any standard rationale for affirmative action, lawful or unlawful (redressing past wrongs done to historically aggrieved groups, creating role models, ensuring “diversity” of perspectives, boosting the prospects of marginalized communities, making sure white students get exposed to students of different cultures, etc.) that would cause a school like University of Texas to, for example, give plus to a well-to-do light-skinned Mexican-American of pure Spanish ancestry to become Hispanic admittee number 300 but not to a Native American living on the Navajo reservation in Arizona to become Native American admittee ten.

But the broader point is that this all led me to be curious [...]

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