The Fifth Circuit Broadens Racial Preferences

The U.S. Court of Appeals for the Fifth Circuit not only upheld racial preferences in college admissions decisions on Jan. 18 but upheld them with a vengeance. The Fifth Circuit’s three-judge panel unanimously agreed, in Fisher vs. University of Texas at Austin, that UT’s flagship campus in Austin could consider an applicant’s race and ethnicity in awarding coveted slots in its incoming freshman classes. The judges declared that this policy was consistent with a 2003 Supreme Court decision, involving racial preference at the University of Michigan’s law school, holding that the goal of achieving “diversity” in classrooms justified admissions policies aimed at ensuring a “critical mass” on campus of historically under-represented minority groups.
Furthermore, the court deemed inadequate a 1997 law, race-neutral on its face but specifically aimed at boosting black and Hispanic enrollment at UT campuses by granting automatic admission to applicants in the top 10 percent of their high school classes—even though the Top Ten Percent Law had been highly successful, increasing the number of black incoming freshman at the UT-Austin campus by 50 percent and substantially increasing Hispanic enrollment.

The clear message: There is very little that the citizens of a state can do to prevent administrators at the universities supported by their tax dollars from incorporating racial preferences into their admissions policies. The general public may hate the preferences and deem them unfair, especially to Asian-American college applicants, who consistently outperform other ethnic groups academically, but short of enacting an outright ban on affirmative action, as Californians did by ballot measure in 1996, citizens seem stuck with the race-based admissions policies that high-minded college administrators have favored since the late 1960s. The plaintiffs in the Fisher case, Abigail Fisher and Rachel Michalewicz, two Texas high school graduates who were not quite in the top 10 percent of their class, contended that UT-Austin had turned them down in order to admit less qualified black and Hispanic applicants.
The problem, of course, lies with that 2003 Supreme Court decision, Grutter vs. Bollinger. It was now-retired Justice Sandra Day O’Connor who wrote the opinion for the high court’s razor-thin 5-4 majority declaring that the goal of achieving campus “diversity” constituted a “compelling state interest” that overrode any argument that racial preferences admissions policies at public institutions of higher learning violate the Equal Protection Clause of the Fourteenth Amendment, which bars race-based discrimination. O’Connor also coined the phrase “critical mass” with reference to diversity goals. Although she attempted to set some limits on the extent to which racial preferences in academia might be deemed constitutional—that they be “narrowly tailored” to achieve diversity goals, that race be just one factor in assessing an individual applicant’s qualification, and that “race-conscious admissions policies” be “limited in time”—critics have complained that those parameters are so vague as to be meaningless. How many students is a “critical mass”? What does the “narrowly” mean in “narrowly tailored”? “Limited in time”? O’Connor suggested that “25 years” might be long enough for U.S. society to become so colorblind and its institutions so ethnically diverse that racial preferences would no longer be necessary—but why not 100 years, or maybe forever? About the only policy that the Grutter ruling made clearly impermissible was setting specific race-based numerical quotas for incoming students. The phrase “critical mass” is nicely non-specific.
The Rush to Implement
Not surprisingly, as soon as the Grutter decision came down, public-university admissions officials rushed to implement what they considered to be Grutter-sanctioned policies where they could. One of those state university systems was UT. In a 1996 decision, Hopwood vs. Texas, the Fifth Circuit (a different panel of judges from the one that ruled in the Fisher case on Jan. 18) declared that an earlier UT policy permitting racial preferences in admissions was unconstitutional. The Grutter decision effectively overturned the Hopwood decision, and as soon as Grutter came down, UT-Austin implemented its “diversity”-focused admissions policy, closely hewing to O’Connor’s language in Grutter, that the Fifth Circuit upheld a few days ago in the Fisher case. Even U.S. Circuit Judge Emilio M. Garza, a judicial conservative appointed to the federal appeals court by President George H.W. Bush in 1991, felt compelled to agree in a concurring opinion that “despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion represents a faithful, if unfortunate, application of that misstep.”
Of course the admissions officials at UT-Austin, and by extension U.S. Circuit Patrick E. Higginbotham, author of the majority opinion in the Jan. 18 Fisher decision, had to work around Texas’s Top Ten Percent Law, which, as Higginbotham wrote, “casts a shadow upon the horizon to the otherwise-plain legality of the Grutter-like admissions program.” The Top Ten Percent Law has clearly been an astounding success, significantly boosting black and Hispanic enrollment on an elite and top-ranked public campus without the need for racial preferences.
But UT-Austin (and Higginbotham by extension) decided that overall campus enrollment of blacks and Hispanics wasn’t enough to ensure true “diversity.” Instead, there had to be a “critical mass” of black and Hispanic students enrolled in every UT-Austin program and sitting in every UT-Austin classroom. It turns out, for example, that significantly more black and Hispanic students at UT-Austin tend to major in education and social work than in business, and before UT-Austin implemented its Grutter plan in 2004, the majority of classes on the Austin campus enrolled either zero or one black or Hispanic student. This would seem to be a matter of pure academic and career preferences—more Hispanics would rather teach sixth grade than work for Goldman Sachs—but for UT-Austin administrators (and for Higginbotham), it amounted to a failure on the part of the Top Ten Percent Law alone to “perform well in pursuit of the diversity that Grutter endorsed and is in many ways at war with it,” as Higginbotham wrote in his majority opinion. Deciding that race-based preferences should be part of a college’s admissions policy until there are at least five blacks enrolled in every macroeconomics and biochemistry class on campus is a fine-toothed interpretation of Grutter indeed—as well as a prescription for extending that “25 years” that O’Connor endorsed in Grutter to 250 years or perhaps more.
In his 30-page concurring opinion in the Fisher case, which reads more like a dissent, Garza expressed the thinly veiled hope that the Supreme Court would decide to review—and overturn—the Grutter decision that caused all the trouble in the first place. That’s a distinct possibility. O’Connor is now off the court, replaced by a stalwart conservative, Justice Samuel Alito, an appointee of President George W. Bush, and the perpetual high court swing vote, Justice Anthony Kennedy, was one of the four jurists who dissented in Grutter. “Like the plaintiffs and others denied college admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles,” Garza wrote. But what if the Supreme Court would rather not reconsider Grutter? That would mean that racial preferences may well be part of academic life in perpetuity.


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