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August 31, 2012

Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter

Cross-posted from Justia's Verdict.

The Supreme Court Term that begins in October, like the one that wound down this past June, features some potentially momentous cases. Perhaps the biggest case on the Court’s 2012–13 docket so far is Fisher v. University of Texas, a case in which the Justices will take up once again the extent to which public higher educational institutions can make use of an individual’s race at the admissions stage. (I have written a number of other columns on Fisher, including one viewable here (Part One) and here (Part Two), that provide additional background.)

One big question the Fisher case raises is whether the U.S. Court of Appeals for the Fifth Circuit properly applied the Supreme Court’s 2003 ruling in Grutter v. Bollinger, in which a narrowly divided Court purported to apply strict judicial scrutiny to, but ultimately upheld, the University of Michigan Law School’s use of race alongside many other factors in its admissions process. But in addition to the question whether Grutter was properly applied in Texas is the question some have raised about whether Grutter should itself be overruled. And one challenge to Grutter that I have seen discussed in some recent academic commentary is whether the “diversity” rationale of Grutter—the idea that admitting minority applicants even in part because of their race helps create a better learning environment for nonminority students—problematically uses, instrumentalizes and commodifies minority applicants. In the space below, I take up this idea and offer some responses.

The Foundation of the Constitutional Concept of Educational Diversity: The Bakke Case

To assess the diversity rationale, a good starting point is the Bakke v. Regents of the University of California case from 1978. There, a splintered Supreme Court struck down an affirmative action admissions program undertaken by the medical school at the University of California, Davis, saying that the Davis plan, under which 16 out of 100 entering medical school slots were reserved for members of traditionally underrepresented racial minorities (e.g., Blacks and Latinas/os), violated federal law (either the Equal Protection Clause of the U.S. Constitution, federal statutes that prohibit discrimination on the basis of race, or both.)

Justice Powell wrote a famous opinion (parts of which were joined by other Justices) that controlled the outcome of the Bakke case. In it, Justice Powell said that medical schools (and, by extension, other institutions of higher education) had a legitimate and compelling interest in assembling a student body that was diverse along many lines, including race, but that the Constitution forbade the particular means—racial quotas—that Davis had used to further that interest.

Instead, said Justice Powell, an individual applicant’s minority race can be used as a factor in admissions only when the university also considers a number of diversity aspects other than race, and only when each applicant is compared—taking into account traditional academic strength, the various dimensions along with s/he might add diversity, and other criteria—individually against all other applicants, rather than being evaluated only as against applicants of the same race for a set of pre-designated slots. Justice Powell lauded the racial “plus” plan (which he said was embodied in the way Harvard had structured its admissions system) even as he criticized the quota approach.

Grutter and Gratz: A Supreme Court Majority Embraces Powell’s Approach

In 2003, 25 years after Bakke, the Supreme Court again took up the question of race-conscious affirmative action in higher education, in a pair of cases involving the University of Michigan. In Grutter v. Bollinger, the Justices, by a 5-4 vote, with Justice O’Connor writing for the majority, adopted the approach of Justice Powell in Bakke in upholding the University of Michigan Law School’s race-based affirmative action plan. Whether or not Justice Powell’s view—that racial diversity was a compelling interest that could be permissibly furthered by a narrowly tailored policy that looked at the entirety of the personal and academic attributes of each candidate (including her race) in a system where no slots were reserved for people of particular races—was a “holding” for the Court in 1978, the Court adopted that approach in 2003 in Grutter and made it indisputably the law of the land.

And because, said the Court, the Michigan law school plan at issue in Grutter did not use quotas, but rather took into account race and other characteristics of each applicant in a person-specific and holistic way, the plan survived the “strict scrutiny” that is required under the Constitution for all governmental consideration of an individual’s race. Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented.

In the companion case, Gratz v. Bollinger, the University of Michigan’s undergraduate admissions program, which used race in a more systematic and mechanical way, was struck down by the Court because it operated too much like the forbidden Bakke quota system.

Fisher, the Direct Challenge to Grutter’s Premise it Presents, and a Possible Response

That brings us to Fisher, where one of the questions the Court might take up is whether to retain or overrule Grutter. One line of criticism of Grutter can be found in the recent writings of a venerable constitutional scholar at Vanderbilt Law School, James Blumstein. In some recent scholarship, Professor Blumstein expressed concern over the fact that under the diversity rationale, race-conscious policies are justified “not for the sake of the black and minority students’ own education but largely for the sake of affording educational benefits to others.” In Grutter itself, he points out, the “students who secured the lion’s share of the educational benefits from student body diversity were white students who matriculated to the [Michigan] Law School.” This leads him to suggest that “[w]hatever one might think of group-based racial preferences targeted remedially . . . one should take pause at the non-remedial commodification rationale underlying Grutter. [Grutter] treat[s] minority-student presence as instrumental, a means toward achieving the end of improved quality of education at a public institution of higher learning.”

What are we to make of this? For starters, I should say (and have written) that I lament the doctrinal demise (caused by what I view as intellectual missteps of the Court itself) of the remedial rationale for race-based affirmative action, in favor of an exclusive focus on educational diversity. And I have noted that, technically speaking, the Court has not required that diversity-based affirmative action programs help the admitted minority students in order to survive strict scrutiny. Moreover, race-based commodification, in the form of slavery, remains the single most egregious insult to liberty and justice in American constitutional history.

And yet I am still not as worried by the “commodification/instrumentalization” problem created by the diversity theory as Professor Blumstein appears to be, for three related reasons.

First, it seems to me that university admissions folks instrumentalize or commodify applicants no matter which admissions criteria they employ. If a public college looks only at high school grades and standardized testing scores—and does not consider race or other elements of the whole person—it is doing so at least in part to produce a student body that will make the school look more elite and prestigious in the rankings game and to the outside world. Surely traditional admissions criteria are not designed simply to reward hardworking applicants—use of grades and scores rewards not just hard work but also innate academic aptitude. Nor are colleges that use only “objective” criteria trying simply to identify those applicants who themselves could make the best use of the college’s educational resources; to be sure, the colleges care about the students, but they also care about the short- and long-term success of the colleges themselves. Indeed, it is somewhat ironic that looking at more, rather than fewer, aspects of a candidate’s overall personhood would generate a greater sense of impermissible commodification.

My second response follows closely from my first: Under the diversity rationale that focuses on a number of different kinds of diversity (not racial diversity alone), virtually all admitted students, not just racial-minority students, are in some sense being commodified. The standardized-test whiz, the musician, the computer geek, the older “returning” student, the actor, the farm kid from the underrepresented rural Midwest, the athlete from the big inner-city school, all are being admitted—and I suppose, in some respect, all are being used—by the university to enhance the institution and the educational experience of other students. When commodification/instrumentalization is so broad and pervasive, it loses much of its normative taint under the Constitution—this is why taxes (which instrumentalize all of us) are viewed differently than takings (which make public use only of some of us.)

Finally, we must bear in mind the voluntary nature of participation in an affirmative action program. Minority applicants needn’t choose to attend a school in which their race likely played a factor in their admission; they are free to instead attend a school where their “objective” academic indicators (e.g., prior grades and standardized test scores) place them more comfortably in the mainstream. Because matriculation is voluntary, I think we can infer that the vast majority of minority students who do choose to attend schools where their minority race played an admission role believe that the access to the (presumably) more elite institution outweighs any stigmatic or psychological cost of being “used” for the benefit of other students. In this respect, at least if we are to credit the market-based choices minority applicants make, educational diversity can be seen as “win-win.” In short, the commodification/instrumentalization present in affirmative action seems to me no worse than, and probably much less troubling than, the use that universities make of Division I athletes in exchange for a scholarship and a first-rate education. Certainly, it is nothing like the commodification represented by slavery.

I do have a caveat here, though: If indeed minority students are making choices to attend institutions based on misinformation, or insufficient information, about whether they would be helped or hurt by attending the more elite institution, then that information glitch needs to be addressed for my confidence about the win-win nature of the diversity-based affirmative action to continue. That is why even though I am dubious about many of their substantive hypotheses, I support the efforts of so-called “mismatch” theorists to obtain the best possible information from educational institutions in order to test their claims that minorities would likely be better off if they chose not to attend institutions that made use of their race to admit them. At a minimum, if these claims have merit (and, again, I am far from convinced that they do), then applicants would need to be so informed, so that they could make choices about their own individual circumstances that guarantee that, even if they are being used, they are not being misused.

December 16, 2011

Fisher v. Texas: An Important Affirmative Action Case Pending in the Supreme Court in Which the Challengers May Have Blown It

A pending case that should be of interest to all folks in higher education, and especially those of us who teach law students how to draft pleadings, is Fisher v. University of Texas. The case involves a challenge to the University of Texas’s ability to use race in admissions as part of its affirmative action program, and is now before the U.S. Supreme Court.  I have written two earlier online essays on various aspects of the case for Justia.com; they are viewable here and here.

Whether the Supreme Court can and will take the case is turning out to be a complicated question.  The plaintiff (one of two, but now the only one left) applied to UT as a freshman and was denied admission.   She filed suit in federal court challenging UT's race-based admissions criteria, but at the same time enrolled in another college. In her Complaint (her request for relief), she asked for a declaration that she was entitled to have her UT application considered without regard to race, an injunction (a court order) directing UT to consider admitting her without regard to race (on the premise that she would transfer to UT), and money damages "in the form of" a refund of her admissions application fee (on the theory that her application had not been processed fairly, so that she was entitled to her money back.)

She lost in the trial court, and then twice in the Fifth Circuit Court of Appeals, first in front of a three-judge panel in January 2011, and then this past summer when she (unsuccessfully) asked the Fifth Circuit as a whole (en banc) to review her case.  She then made a request for Supreme Court review.

But here's the (or at least a) big wrinkle.  Since it took a while for her case to be resolved by the Fifth Circuit, she's no longer interested in transferring to UT (she's already a senior at her college).  So her claims for declaratory and injunctive relief are no longer live; in legal parlance they are moot.  But what about her small monetary refund claim (around $100)?

In opposing Supreme Court review last week, UT told the Court that if the Court grants review, UT will offer to refund plaintiff the $100, thereby mooting the damage claim too!  So, argues UT, it would be a waste of time for the Court to grant review, only to have to dismiss the case before deciding it.

A very interesting argument.  There is no clear Supreme Court authority that UT cites that says a mere offer to give a plaintiff what she seeks will moot a case at a late date even if the plaintiff turns the offer down.  In other words, UT cites no case that says mere "tender" by a defendant is enough to moot a damage claim late in the day.  (And it is somewhat odd that UT, if it feels this way, didn't make a "tender" earlier this year when plaintiffs sought en banc review in the Fifth Circuit; the injunctive claims were moot then too, since plaintiffs were already in their junior years and would no longer be interested in transfer.  Also, it is interesting that UT says it will tender if review is granted, rather than simply making the tender right now.)

Nonetheless, as a matter of mootness logic, the tender argument has some force.  If a defendant is willing to give the plaintiff all she currently asks for, why should a court still have the power to step in?

One possible response for plaintiff would be to say she now wants to amend the Complaint to add additional damages for not having been able to attend UT (lost earnings due to a slightly inferior education, etc.).  After all, she might say, the fact that she asked for an injunction shows that what she wanted all along was the value of the UT experience, and if she can no longer get that in-kind, money damages are the next best thing.

All that may be true, but the district court (where such decisions must be made) has not yet permitted her to amend the Complaint to add damages in light of UT's promised tender.  As the case exists before the Supreme Court (and as the Court observed in a decision two years ago, Alvarez), the Complaint is unamended and therefore arguably moot.  (Maybe Alvarez is different because there the original Complaint sought no damages, whereas here it sought small but now insufficient damages.  But should that make a difference?)

Or perhaps plaintiff can argue that the catchall "all other relief [the] [c]ourt finds appropriate and just" language at the end of her Complaint can be read to include additional damages beyond a refund.  But I don't know that such boilerplate language (that exists in virtually all complaints) can do the work.  If it could, then virtually no case could ever become moot, because some, unspecified, damages are always conceivable even if they are not requested.

We'll see what happens.  I won't be too surprised either way the Court goes; if it wants to use this case to revisit whether race can be used in higher education admissions (which it last addressed in 2003 in cased involving the University of Michigan), it might be able to find a way.  But it won't be easy.

In the meantime, I hope we can all agree that plaintiffs' Complaint should have been written so as not to limit the damages to a refund, but rather to include the value of a UT education should injunctive relief not be granted.  Instead of saying damages "in the form of" a refund, the Complaint should and could have said damages "including but not limited to" a refund . . .   Those five words should be the first ones taught in law school.