June 24, 2013

End of the Road for Racial Preferences?

Statement of Committee for Justice president Curt Levey on today’s Supreme Court’s decision in Fisher v. University of Texas narrowing the use of race in admissions:

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)

We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.”  The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.

The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin.  But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.

The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone.  As the Court said today:
"Consideration … is not sufficient to satisfy strict scrutiny: The reviewing court 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." (internal quote marks omitted)

Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Today’s decision servers as a final warning to universities that the Supreme Court is serious about racial preferences being defensible only when race-neutral alternatives fail.  The next time a university that has not rigorously met this standard comes before the Court, it can expect to lose.  In that sense, today’s decision is reminiscent of the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District v. Holder, in which the Court by a similar majority (8-1) warned Congress that it needed to amend the constitutionally dubious preclearance coverage formula of the Voting Rights Act.  After four years of Congress ignoring the warning, the Supreme Court is likely to strike the formula down later this week in Shelby County v. Holder.

While today’s decision will not eliminate race-based admissions in the short-term, it will very likely curtail it precisely because race-neutral plans – such as Texas’s Top Ten Percent and similar alternatives that focus on socioeconomic and educational disadvantage rather than race – have been so successful in achieving diverse student bodies. As Committee for Justice president Curt Levey said nine years ago in a law review article following the Grutter and Gratz decisions:
“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. …  [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account.  The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.

Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system  may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye.  That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys.  For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).