U.S. Supreme Court

Chemerinsky: Supreme Court Revisits Affirmative Action in Universities

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Erwin Chemerinsky

The U.S. Supreme Court is scheduled to hear oral arguments Oct. 10 in Fisher v. University of Texas at Austin over the issue of whether colleges and universities may continue to use race as a factor in admissions decisions to benefit minorities and enhance diversity. The case could have a profound effect on the racial composition of America’s universities for years to come.

The Supreme Court last addressed the issue of affirmative action in higher education in 2003 in Grutter v. Bollinger. In that case, 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 admissions decisions. The court said that such affirmative action plans could continue for the next 25 years.

Why, then, is the court revisiting the issue so soon? The answer is simple: The majority opinion was written by Justice Sandra Day O’Connor and joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The dissent was composed of Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Four of these justices are no longer on the court. Many expect that Chief Justice John G. Roberts Jr. will vote as Chief Justice Rehnquist did and that Justice Sonia Sotomayor will vote as Justice Souter did. Justice Elena Kagan, Justice Stevens’ replacement, is recused from participating in Fisher.

The key difference, of course, is that Justice O’Connor has been replaced by Justice Samuel A. Alito Jr. Few expect him to vote as Justice O’Connor did. In 2007, Justice Alito joined Chief Justice Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, which proclaimed that the Constitution requires that the government be color-blind. There would seem then to be five votes to narrow or even reconsider Grutter: the three dissenters from that case who remain on the court (Justices Scalia, Kennedy, and Thomas) along with Chief Justice Roberts and Justice Alito.

Fisher involves the admissions policy for undergraduates at the University of Texas at Austin. To facilitate diversity, Texas adopted a policy of taking the top 10 percent of graduates from high schools across the state. For the time period covered by the litigation, about 70 percent to 80 percent of the undergraduates were admitted via this Top Ten Percent Plan. Texas found, though, that this did not yield the desired diversity. In the fall of 2002, African-Americans comprised only 3.4 percent of the students and Hispanics were only 14.3 percent. This was less than the fall 1996 levels, despite a significant increase in the Hispanic population of Texas during this time period.

After Grutter v. Bollinger, the Regents of the University of Texas adopted a policy to further diversity. This involved a “holistic” review of each application, with race being a small part in the consideration. Each applicant was assigned a numerical score, and placed on a grid, based on two assessments: an Academic Index (based on grades and test scores) and a Personal Achievement Index. The Personal Achievement Index is a product of the evaluation of two essays and a Personal Achievement Score. Race is one of seven factors used in determining an applicant’s Personal Achievement Score.

In 2008, Abigail Fisher applied to the University of Texas at Austin and was not admitted to their undergraduate program. She sued, claiming that the use of race in the admissions process violated equal protection. The federal district court ruled in favor of the University of Texas, saying that its program is permissible under Grutter. The 5th U.S. Circuit Court of Appeals affirmed.

Fisher argues to the Supreme Court that Texas is impermissibly seeking to achieve “racial balancing.” She argues that the Top Ten Percent Plan already has achieved great diversity at the University of Texas at Austin and that the holistic review process has too negligible an effect on the presence of minority students to sufficiently further the university’s interest in diversity. She contends that the university can achieve diversity without needing to consider race as a factor in admissions decisions. At the end of her brief, Fisher argues that Grutter should be narrowed or overruled.

By contrast, the University of Texas argues that it is doing exactly what the Supreme Court prescribed in Grutter: It is pursuing diversity by using race as one factor among many in the admissions decisions. It argues that the Top Ten Percent did not provide sufficient diversity overall or in most classrooms. It maintains that its holistic review has increased the number of both African-American and Latino applicants and those admitted. It points out that in 2008, 20 percent of African-Americans and 15 percent of Hispanics were admitted through the holistic review process.

One key question that the court will have to confront–which was barely raised in the briefs–is whether it has jurisdiction at all. In other affirmative action cases involving higher education, such as Regents of the University of California v. Bakke and Grutter, the plaintiffs were seeking injunctive and declaratory relief. But Fisher is not; since she already has graduated from Louisiana State University she no longer has a claim for an injunction or a declaratory judgment. Her only claim is for $100 in money damages, $50 for her application fee and $50 for her housing deposit.

The problem is that the defendants named in the suit are the University of Texas, a state university, and its officers, who are sued in their “official capacity.” The law is clear that the Eleventh Amendment and sovereign immunity bar suits for money damages against a state government or its officials who are sued in their official capacity for a constitutional violation.

Moreover, it is questionable whether Fisher has standing to bring the claim. Her injury, a loss of money for the application and housing fee, was not caused by the University of Texas affirmative action plan. She surely would have applied anyway. In fact, in Texas v. Lesage, decided in 1999, the court expressly distinguished between an affirmative action case seeking an injunction, prospective relief, as opposed to one seeking only money damages. The court said in the latter situation “the government’s demonstration that it would have made the same decision about the discrimination precludes any finding of liability.” In the federal district court, Texas demonstrated that Fisher would not have been accepted even if she had a perfect Personal Achievement Score.

If the court finds jurisdiction and reaches the merits, the question will be whether a majority of justices wish to revisit Grutter. The question presented by Fisher to the Supreme Court argues that the Texas plan is unconstitutional under existing case law. Moreover, in her complaint, Fisher expressly declares: “To the extent that UT Austin articulates an interest in promoting student body diversity, [p]laintiffs do not challenge this interest.”

Within the Grutter framework, Texas has a strong argument: it is doing exactly what the Supreme Court prescribed, using race as one factor among many in admissions decisions. On the other hand, regardless of how the issue was framed by Fisher, there may be a majority to reconsider Grutter. Based on their past opinions, Chief Justice Roberts and Justices Scalia, Thomas and Alito likely would overrule it and prevent any consideration of race in admissions. The key to the case is whether Justice Kennedy, who dissented in Grutter but who has recognized the importance of diversity, will vote to uphold the Texas program, to find it unconstitutional on narrow grounds, or be the fifth vote for a major change in the law.

The stakes are enormous. The reality is that because of the history of race discrimination and current inequalities in education, African-American and Latino students will be significantly underrepresented in higher education, especially at elite schools, without affirmative action. The racial composition of classrooms in colleges across the country will likely be determined by the Supreme Court’s decision in Fisher v. University of Texas at Austin.

Erwin Chemerinsky, Dean and Distinguished Professor of 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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