Friday, June 28, 2013

Fisher


On Monday the Supreme Court announced its much-awaited decision in the affirmative action case, Fisher v. University ofTexas.  The announcement wasn’t a surprise, given that this is the final week in the Court term and that Fisher was the earliest argued case still remaining on the Court’s docket.

What was surprising is that the decision was by a 7-1 majority (Justice Kagan recused herself).  That is the kind of majority many observers thought this Court was incapable of producing.  That strong majority, along with the long period of time between oral arguments and the decision, invites speculation that Justice Anthony Kennedy’s majority opinion was narrowly tailored in order to cobble together that majority.

I read the opinion as soon as it came out on Monday morning, and had hoped to post a response later in the day, but I had a meeting out of town on Tuesday and Wednesday and didn’t want to rush just to get something out.

In Fisher the Supreme Court vacated a Fifth Circuit Court of Appeals decision supporting Texas, remanding the case back to the Fifth Circuit to try it on its merits.  The Fifth Circuit had denied Fisher’s appeal on the basis that Grutter v. Michigan, the last big affirmative action case decided by the Supreme Court, had required courts to give deference to universities to determine whether a diverse student body is a compelling interest and how to achieve that.  Justice Kennedy’s opinion finds that deference to be mistaken.

The good news is that the Fisher decision does not address the merits of affirmative action, although both Justices Scalia and Thomas made it clear that they would have voted to overturn Grutter if asked.  What it does is put the burden of proof on colleges and universities that take race into account in admission in order to achieve diversity.  Whereas the Fifth Circuit decision supported the idea that colleges should have discretion to decide what their institutional priorities are and how to achieve them, Justice Kennedy’s opinion puts the burden of proof on universities to demonstrate that achieving diversity is a compelling interest and that the admission policies put in place are narrowly tailored to achieve that interest.

So where does the Fisher decision leave the affirmative action debate?  It in no way resolves it, but it changes it by raising some fundamental philosophical questions that have been taken for granted in the past.     

The first question is, Is diversity a compelling educational interest for colleges and universities?  I think the answer is clearly yes, that a student’s education is broader and richer by being exposed to classrooms with a diverse array of backgrounds, experiences, and perspectives.  I also think that the higher education establishment has taken the value of diversity as an article of faith, asserting the value but not necessarily demonstrating the value. 

What factors contribute to educational diversity?  Given America’s history of racial discrimination, does being a student of color automatically bring diversity, or are there students of color who don’t contribute to diversity because of their socioeconomic backgrounds?  Are we as a society in a different place than we were during the Civil Rights Movement 50 years ago, or are our sensitivities to race just under the surface?  In oral arguments Texas argued for the importance of critical mass in order to relieve individual students of the burden of representing all students of a particular background, but didn’t have a great deal of research to show that classroom diversity would be lacking without the affirmative action program.  The amicus brief filed by the College Board and other educational organizations argues for self-determination, that colleges and universities should be trusted to determine their own policies, and it is clear that the court buys that argument only with limits.

If diversity is a compelling interest, is affirmative action necessary to achieve it?  Do colleges have alternatives?  In the Fisher case, the necessity argument was complicated by the fact that the defendant was the University of Texas. Several years ago the state of Texas instituted a law requiring that students ranking in the top ten percent of their high school classes be automatically admitted to public colleges and universities.  According to the UT-Austin website, 75% of the in-state spots in the freshman class are admitted through that program.  That law is certainly controversial and debatable on its own merits, but it has produced a diverse student body, if diversity is defined in terms of ethnic origin.  It was the program to admit the remaining 25% of students who were not in the top ten percent that was being challenged, and in oral arguments the attorney for Texas seemed to suggest that diversity required admitting underachieving middle- and upper-class students of color. It would have been easier to argue that affirmative action is necessary to produce a diverse student body had the defendant in Fisher not been located in Texas.

The ultimate question is whether the end justifies the means.  No one (at least no reputable voice) wants to return to the racial segregation of the 1940’s and 50’s, but does it make a difference how an institution achieves diversity?  In the first affirmative action case argued by the Supreme Court, the Bakke case, the medical school at the University of California at Davis set aside a certain number of slots for minority students and essentially conducted two different admission processes.  That approach was declared unconstitutional, but in succeeding cases institutions are less blatant but still figure out the result they want and reverse engineer the admission process to produce that result.  In Fisher the Supreme Court clearly answered that the means of achieving diversity is as important as the goal of achieving diversity.

In the wake of Fisher affirmative action lives, but colleges and universities will be challenged to demonstrate that their admission processes meet the burden of strict scrutiny if challenged in the courts.  That should stimulate a healthy discussion about how best to accomplish a worthy goal. I’m guessing that the Supreme Court will deal with this issue again in the near future.

Correction:  In the initial post I stated that the Bakke case involved the law school at the University of California-Davis.  It was the medical school, and I have corrected it above.  Thanks to Jon Reider for pointing out the error.  I could blame it on senility, but the truth is I was in a hurry to post and got careless.

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