June 25, 2016 | Commentary on Legal Issues, Federal Judicial Branch

A Disappointing Decision, but More Lawsuits Are on the Way

Yesterday’s ruling in Fisher v. University of Texas at Austin was disappointing, to say the least. Justice Anthony Kennedy’s majority opinion, allowing UT to continue using a race-conscious admissions program without sufficiently articulating its “diversity goal” or providing proof that it was meeting that goal, betrays his previous equal protection jurisprudence and the belief that we have a colorblind Constitution.

Rather than require UT to meet the strict-scrutiny standard required by the Constitution, this decision permits the school to continue sorting prospective students by race and ethnicity. As Justice Clarence Thomas has previously explained (and reiterated in his Fisher II concurrence), “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.” Indeed, he continued, the “‘faddish theor[y]’ that racial discrimination may produce ‘educational benefits’” does not change that constitutional command of equal protection.

But Kennedy and the others in the majority disagreed with these laudable statements. Kennedy attempted to recast his decision in Fisher I, noting that such race-conscious programs still must meet strict-scrutiny review. This requires a school to show “with clarity” that its “purpose or interest [in the educational benefits of diversity] is both constitutionally permissible and substantial” and the use of race is necessary to advance that purpose or interest. While a school may not use “fixed quota[s]” or a “specified percentage” of a race or ethnicity, once they give “a reasoned, principled explanation,” “deference must be given” to the school officials’ “experience and expertise, that a diverse student body would serve its education goal.” Finally, judges must not defer to school officials on whether the use of race is narrowly tailored to advance the asserted goal. This last part, however, lost any teeth it may have had because Kennedy’s opinion lets schools provide scant evidence.

On the one hand, Kennedy says UT is “prohibited” from having a set number of seats based on students’ races and ethnicities. But then he states that “asserting an interest in the educational benefits of diversity writ large is insufficient.” So how does a school sufficiently prove it is meeting its diversity goal without setting quotas? The answer, according to Kennedy, is putting out a study with all the right buzzwords: promoting “cross-racial understanding,” “break[ing] down racial barriers,” “cultivat[ing] a set of leaders with legitimacy in the eyes of the citizenry.”

This begs for the very deference Kennedy denied UT officials in Fisher I and now allows UT to rely on its own study showing (unsurprisingly) that race was necessary for the school to meet its amorphous, undefined goal of diversity. Kennedy concluded the majority opinion by stating that UT must continue to “scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”

This smacks of naïveté about how college admissions actually work. Even in this case, it previously came to light that UT had an additional, secret admissions policy that overrode the “holistic review” for applicants who were not admitted as part of the Top Ten Percent Plan, allowing politically connected individuals – such as state legislators and members of the university’s board of regents – to get family members and other friends admitted. An outside investigation by Kroll, Inc., found that many of these students were admitted “despite grades and test scores substantially below the media for admitted students.”

The silver lining is that more cases are on the way. Lawsuits are currently pending in federal district courts that challenge the racially discriminatory admissions policies of Harvard and the University of North Carolina-Chapel Hill. The Harvard suit was brought by Asian-American applicants who claim they were denied admission because the university has put limits on the number of Asian Americans it will admit, similar to the racist quotas and caps that Ivy League schools put on the number of Jewish students they would admit in the 1920s. The plaintiffs in the North Carolina case highlight the fact that the university conducted a study showing that if the school dropped its racial preference policy and switched to a “top ten percent plan” like Texas, its minority enrollment would soar.

Additionally, more than 130 Asian-American organizations recently asked the Department of Education and the Justice Department to investigate Yale University, Brown University, and Dartmouth College for their use of discriminatory policies, which they claim amount to race-based quotas that lock out well-qualified Asian-American applicants.

They point to data from the Department of Education showing that Asian-American enrollment at Brown and Yale has been stagnant since 1995, and at Dartmouth since 2004, despite an increase in highly qualified Asian-American students applying to these schools during that time. In fact, data show that Asian Americans must score, on average, “approximately 140 point[s] higher than a White student, 270 points higher than a Hispanic student and 450 points higher than a Black student on the SAT, in order to have the same chance of admission.” The groups suspect Yale, Brown, Dartmouth, and other Ivy League schools “impose racial quotas and caps to maintain what they believe are ideal racial balances,” harkening back to the days of the Chinese Exclusion Act and the internment of Japanese Americans during World War II.

Like many other schools, Yale, Brown, and Dartmouth use a “holistic” approach to evaluate applicants, which allows race and ethnicity to become a large factor in the admission equation. In their complaint, the Asian-American groups assert that these colleges rely on stereotypes and biases to deny Asian-Americans admission. Admission board reviewers’ notes track the stereotypes: “He’s quiet and, of course, wants to be a doctor” or her “scores and application seem so typical of other Asian applications I’ve read: Extraordinarily gifted in math with the opposite extreme in English.”

Since the admissions policies at these schools are highly secretive, they freely discriminate against Asian-American applicants. In fact, Yale’s law school recently began destroying its admissions records, presumably to avoid having to disclose the criteria such as race and other standards they use to determine admissions.

Perhaps if one of these cases reaches the Supreme Court, it will be harder for the liberal Justices to rule against Asian Americans who are blatantly and unfairly discriminated against. Maybe Kennedy will see that these admissions officials are not acting in good faith, but rather seek to keep out certain students because they are not members of a preferred minority.

Kennedy once wrote that “[d]istinctions between citizens solely because of their ancestry are by their nature odious to a free people.” Let’s hope he remembers that the next time a case involving race discrimination comes before the Supreme Court.

About the Author

Elizabeth Slattery Legal Fellow and Appellate Advocacy Program Manager
Edwin Meese III Center for Legal and Judicial Studies

Originally published in SCOTUS Blog