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U.S. Supreme Court

Chemerinsky: What’s next for affirmative action?

Posted Aug 6, 2013 9:25 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky.

No decision of the Supreme Court's term was more eagerly anticipated than Fisher v. University of Texas, Austin, on the constitutionality of affirmative action by colleges and universities. The case was argued on Oct. 10 but not decided until June 24. At first reading, the decision seemed to do very little. Supporters of affirmative action breathed a huge sigh of relief that the court did not change the law. At most the court clarified it and remanded the case for further consideration. But will the decision have any effect on affirmative action?

In June 2003, in Grutter v. Bollinger, the Supreme Court held 5-4 that colleges and universities have a compelling interest in having a diverse student body and that they may use race as one factor among many in their admissions decisions. In 2004, the regents of the University of Texas realized that they had a less diverse student body than existed in 1996. A new admissions plan was adopted.

Under the new plan, about 75 percent of the entering class was taken from the top 10 percent of high schools across the state. Texas is racially segregated sufficiently to produce some racial diversity. The other 25 percent of the class was taken by calculating an admissions score for each student. The score was the sum of two numbers: an academic achievement index, which was the applicant's grades and test scores, and a personal achievement index, which was arrived at by grading two essays and looking at six factors, one of which was diversity.

Abigail Fisher applied for the University of Texas in 2008 and was rejected. She enrolled at Louisiana State University, from which she graduated in 2012. After being rejected, she brought a lawsuit against the University of Texas challenging its use of race as denying equal protection. The federal district court and the 5th U.S. Circuit Court of Appeals ruled in favor of the University of Texas, saying that it had followed Grutter and had permissibly used race as one factor among many in its admissions decisions.

Although the Supreme Court granted review, I strongly believe that the court did not have jurisdiction to hear the case. Fisher expressly acknowledged to the court that she no long had claims for injunctive or declaratory relief. She graduated from college and is not going again. She is the only plaintiff in the lawsuit and her only remaining claim is for $100, her application fee. The defendants in the lawsuit are the University of Texas and its regents, sued in their official capacity. But the law is clear that the 11th Amendment bars suits for money damages against a state or its officials in their official capacity. Moreover, to have standing a plaintiff must show that his or her injury is caused by the unconstitutional policy. Abigail Fisher's loss of $100 was not caused by the affirmative action plan.

Inexplicably, the court ignored these jurisdictional issues, although they had been raised as a footnote in the University of Texas's brief to the court. In a 7-1 decision, the court reversed the 5th Circuit's decision and remanded the case for reconsideration. Justice Anthony M. Kennedy wrote for the court. Only Justice Ruth Bader Ginsburg dissented; Justice Elena Kagan was recused.

The court said that it was not reconsidering Grutter v. Bollinger nor its holding that colleges and universities have a compelling interest in having a diverse student body. The court said, though, that Grutter established that any use of race in admissions must meet strict scrutiny and thus must be shown to be necessary to achieve a compelling interest. The court said that it is not enough to have a compelling interest in achieving diversity; a college or university also must show that the use of race is necessary to achieve it.

Justice Kennedy wrote that there must be a "careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications." In crucial language, the court said: "The reviewing [c]ourt must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." But the court also said that this "does not require exhaustion of every conceivable race-neutral alternative."

In one sense, this did not change the law concerning affirmative action. The court reaffirmed Grutter: colleges and universities have a compelling interest in having a diverse student body, but must meet strict scrutiny is using race as a factor in admissions decisions.

In another sense, though, Fisher adopted a tougher, less sympathetic tone when it comes to affirmative action programs. For example, in Grutter , the court spoke of the need to defer to the judgment of colleges and universities. In Fisher, the court said that such deference was appropriate only as to the importance of diversity; there is no deference to given as to whether race is necessary to achieve it. Justice Kennedy declared: "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."

Fisher leaves open many crucial questions, which will need to be litigated on remand–unless the lower court dismisses, as it should, for lack of jurisdiction–and in challenges to other affirmative action plans. Colleges and universities use race to gain diversity precisely because other alternatives don't achieve racial diversity.

But what kind of evidence is required to show that race-neutral alternatives are insufficient to achieve diversity? Must each institution compile its own evidence and how much evidence is required?

In fact, it even is unclear as to what qualifies as a "race-neutral" alternative. For example, is a top 10 percent plan, in which a state university takes the top 10 percent of graduates from around the state, race-neutral? Justice Ginsburg makes the point in her dissent that top 10 percent plans are adopted with the intent of creating racial diversity and have that effect. A government action taken with the intent and impact of using race is treated as a racial classification under equal protection. In fact, any proxy for race that is done with the purpose and effect of using race is a racial classification.

Nor does the court offer any guidance to what "diversity" means. In Grutter , the court recognized that there must be a "critical mass" of minority students to attract them to attend and to provide the benefits of diversity. One of the key issues raised in the briefs and oral arguments in Fisher was how to determine what is sufficient for a "critical mass." The court did not address that issue.

These are the questions that will be litigated on remand in Fisher and in challenges to other college and university affirmative action plans across the country. These plans survive after Fisher; the court declared nothing unconstitutional. But the court's decision is surely not its last word and it would not be surprising to see Fisher come back to the court for clarification of these unresolved issues. And if not Abigail Fisher's challenge to the University of Texas, surely other cases will soon be there asking the court to reconsider Grutter and to limit affirmative action.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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