Obama and the Texas Suit against Preferences

The Obama Department of Justice is keen to support those who seek to expand racial preferences. The latest case is Fisher v. University of Texas, in which two young white women, Abigail Fisher and Rachel Michalewicz, argue that the University’s diversity policy-one of the more aggressive in the nation– violates their right to equal protection. In it, the Department of Justice, led by Assistant Secretary for Civil Rights Thomas Perez, stands shoulder-to-shoulder with the University of Texas. If they succeed in convincing the United States Court of Appeals for the Fifth Circuit of the Texas plan’s legality, officially-sanctioned race discrimination on campus could expand significantly.
The argument of the University and the Administration as amicus curiae is essentially this: Seven years ago, in the twin affirmative action cases of Grutter v. Bollinger and Gratz v. Bollinger, the Supreme Court drew a distinction between the racially-discriminatory admissions policy of the University of Michigan Law School (Grutter) and that of the University of Michigan College of Literature, Science and the Arts (Gratz). The latter was held unconstitutional while the former was not. The Texas plan is like that in Grutter-or so their argument runs.
I believe the Grutter case was wrongly decided and that both policies should have been held unconstitutional. But it doesn’t matter. In fact, the Texas policy at issue is like neither Grutter nor Gratz; it is simply a different animal.
Both Michigan cases were about getting a “critical mass” of minority students-in other words a sufficient number of minority students to prevent them from feeling isolated on campus. Indeed, the term “critical mass” appears fifteen times in the majority opinion-and over forty times in the dissents.


The University of Michigan argued that if it couldn’t admit African-American, American-Indian and Hispanic applicants over Asian-American and white applicants, despite wide gaps in their academic credentials, it would be able to enroll few, if any, students in those categories. In order to secure for all students what it asserted were the “educational benefits of a diverse student body,” it asked the Court to carve out a limited exception to the Fourteenth Amendment’s ban on race discrimination for colleges and universities seeking to enroll a critical mass of minority students. A bare majority on the Court agreed to do so, but only if flexible selection procedures like those supposedly present in the Grutter case, but not in Gratz, were used.
Grutter represents the single exception to the Fourteenth Amendment for racially discriminatory admissions policies. Other arguments have been made and rejected in Regents of the University of California v. Bakke.
It was never clear in the Grutter litigation at what point “critical mass” is reached. Some witnesses for the University had stated that 5% was too low; some stated that 10% might be enough. But no one ever suggested that critical mass is an open-ended concept that could be used to mean whatever a particular college or university wanted it to mean. Indeed, no one claimed that racially preferential admissions policies could be used to increase the number of minority students at a school where they already constitute more than 20% of the student body. This is not to say that the Grutter Court would have considered it undesirable for more than 20% of particular school’s students to be from minorities. At the University of California at Berkeley, for example, whites constitute only 30% of undergraduate students. The rest of the class is 4% African American, 42% Asian American and 12% Hispanic. The point is simply that Grutter did not authorize racially discriminatory admissions policies to get there. They are supposed to be a last resort in a case in which the alternative is few, if any, minority admissions.
The problem in Fisher is that the University of Texas is not simply attempting to attract a “critical mass” of minority students. Under almost any definition, Texas already has “critical mass”-a student body that is over 21% under-represented minority (16.9% Hispanic and 4.5% African American). And it got there using racially-neutral criteria adopted more than a decade ago in response to a pre-Grutter court decision that held Texas’ previous affirmative action policy unconstitutional. The limited exception at issue in Grutter therefore does not apply.
Under the view of Grutter argued for by the University of Texas and the Obama Administration, on the other hand, the critical mass requirement would be essentially read out of the case: Critical mass is whatever a university wants it to be-up until it reaches the point of proportional representation, which in Texas’ case would be at a point that at which African Americans and Hispanics together are 48.4%. That can’t be what the Supreme Court meant by “critical mass.”
So far, using race preferences, Texas has raised the proportion of African Americans and Hispanics to 25% of the class? But why not 30%? Or 45%? At what point does it become obvious that the University of Texas is not concerned with preventing feelings of isolation but with achieving proportional representation-a clearly prohibited goal? On this, the Obama Administration has nothing to say.
The good news, of course, is that the Fisher case will give the Supreme Court the opportunity to re-examine and clarify its Grutter decision. Here’s hoping that they take that opportunity.

Gail Heriot

Gail Heriot

Gail Heriot is a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights. She co-chaired the Yes on Proposition 209 Campaign in 1996.

One thought on “Obama and the Texas Suit against Preferences”

  1. Would OBAMA be idealogically flexible enough to sign a healthcare bill that is stripped of the public option that most voters are afraid will be morphed into a heavy-handed single-payer healthcare system.. . Is Obama astute enough to recognize that he can’t force people to accept a system where the government-alone controls doctor’s income & patient’s options..

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