The Fifth Circuit Tries To Rescue UT Even While Governor Perry Tries To Destroy It
by Michael Dorf
On Tuesday, the U.S. Court of Appeals upheld the University of Texas' use of race in undergraduate admissions in Fisher v. University of Texas, on remand from last year's SCOTUS ruling in the same case. Judge Higginbotham's majority opinion is thorough and, in my view, persuasive. The new ruling raises a number of very interesting issues, but in the interest of brevity, after a brief overview, here I'll focus on just two: 1) the nature of the disagreement between the majority and the dissent by Judge Garza; and 2) Fisher's relation to efforts by some conservatives to gut higher education.
Before coming to those points, here is a very brief refresher. For many years, UT followed the practice of other elite universities of granting admissions to excellent applicants based on a "holistic" evaluation of their high school grades, test scores, and other special factors. That last category included a great many things, such as: athletic prowess; other extracurricular excellence; public service; alumni legacy status; and racial diversity. Then, in 1996, a Fifth Circuit ruling in the Hopwood case read Supreme Court precedents as essentially forbidding all uses of race in admissions. That decision was effectively reversed by the SCOTUS seven years later in Grutter v. Bollinger, but in the meantime, Texas had adopted the "ten percent plan"--under which students graduating in the top ten percent of their Texas high school classes were guaranteed admission to a UT campus.
As various Supreme Court justices have recognized, and as Judge Higginbotham recognizes in this week's ruling, the ten percent plan achieves substantial diversity in large measure because of the de facto segregation of Texas schools. Most African American and Latino high schoolers in Texas attend schools that are overwhelmingly non-white. Accordingly, the top ten percent of those schools are mostly minority students. Thus, even though minority students, on average, have lower test scores and other academic qualifications, the ten percent plan enables the UT system to enroll substantial numbers of minority students without expressly classifying applicants by race.
Roughly 80% of UT students are admitted under the ten percent plan. At issue in Fisher is the use of race in the "holistic" process for the remaining 20% of the seats in each entering class. Fisher--a white applicant who fell outside of the top ten percent and was then denied admission under the holistic process--complained that race played an impermissible role in the holistic process. Because UT already achieved substantial racial diversity using the (nominally) race-neutral top ten percent process, she argued, it did not need to include race as a factor in the holistic process. And because the SCOTUS precedents require that race-based admissions program be narrowly tailored, she argued further, using race in the holistic process was invalid.
Although the SCOTUS case in Fisher was hyped as a potential game-changer with respect to race-based affirmative action in higher education, the actual decision was quite narrow. In a 7-1 ruling (with Justice Kagan recused and only Justice Ginsburg dissenting), Justice Kennedy's majority opinion vacated and remanded the initial Fifth Circuit decision. That earlier decision had rejected Fisher's challenge, but the SCOTUS said that the Fifth Circuit had applied the wrong legal standard in part of its analysis. Colleges and universities are entitled to deference in their decision to pursue the compelling interest of racial diversity as part of their academic mission, Justice Kennedy explained, but courts should not defer to state educational officials in the application of the narrow tailoring test.
For readers interested in deeper background, here is a Verdict column I wrote when the SCOTUS granted cert in Fisher, here is a blog post of mine describing the amicus brief I worked on for the Association of American Law Schools, and here is my reaction to the SCOTUS ruling in Fisher on the day it was decided. In that last piece, I said that the action would shift to the lower courts to hash out, in practice, just how strictly to apply narrow tailoring in affirmative action cases. And this week's Fifth Circuit ruling appears to vindicate that prediction.
1) The disagreement
Judge Higginbotham explained that the use of race in the holistic process for the non-top-ten percent seats was narrowly tailored, even without giving the university any deference on that score. As I noted above, his reasoning is careful and thorough. But buried within it is a crucial--and controversial--statement. Quoting the majority opinion in Grutter, Judge Higginbotham stated that "strict scrutiny must not be strict in theory, but fatal in fact." That language has a long history, which is worth unpacking.
The late Gerald Gunther first described the strict scrutiny test applicable to race-based classifications as "strict in theory, but fatal in fact." And so it was with respect to race-based classifications that disadvantaged minorities. But beginning in the 1970s, the liberal and moderate justices on the Supreme Court argued that a more deferential approach should be applied to race as used to advantage minorities. They lost the battle when, in a series of cases from the late 1970s through the mid-1990s, the Court ruled that strict, rather than intermediate, scrutiny applies to all race-based classifications, but the liberal/moderate wing of the Court appeared to win the war: Even as the Court extended strict scrutiny to federal race-based affirmative action in Adarand v. Pena, Justice O'Connor's lead opinion explained that in this context strict scrutiny is not fatal in fact. Justice O'Connor repeated the line in Grutter, now speaking for a clear majority of the Court, and this time putting her money where her mouth was: the Court upheld the University of Michigan Law School's use of race in its holistic process.
Since Justice Alito replaced Justice O'Connor, Court watchers have been waiting to see whether Grutter would be overruled, as hers was the decisive vote in that case. It hasn't--yet. But even as the Court accepts the holding of Grutter, it has seemed to back away from Justice O'Connor's view that strict scrutiny is not quite as strict in affirmative action cases.
The disagreement between the majority and dissent in this week's Fifth Circuit decision in Fisher reflects this same tension. Although not deferring to the university, the majority's version of strict scrutiny allows the university some wiggle room to pursue racial diversity. Meanwhile, the dissent does perfunctorily say that strict scrutiny is not necessarily fatal scrutiny, but it also says that "there is no special form of strict scrutiny unique to higher education admissions decisions."
If the Fisher case goes back to the SCOTUS--and to be clear, I think it should not--one can well imagine that the Court might divide on this same question.
2) Excellence in higher education
Meanwhile, it is easy to overlook what the holistic process is really about. As Judge Higginbotham notes, minorities make up a smaller percentage of students admitted under the holistic process than those admitted under the ten percent process. The holistic process is an attempt to ameliorate the harmful effect of the ten percent process on the quality of the UT student body. After all, a student who graduates number 12 out of 100 from an excellent high school will likely be better prepared for university study than a student who graduates number 9 out of 100 from a troubled high school. The holistic process is not a means to enhance the racial diversity of UT; it is an effort to enhance the overall quality of the student body, with race playing a relatively small role in that process.
Judge Higginbotham clearly approves of UT's efforts to maintain its status as an elite university without sacrificing diversity. That attitude stands in marked contrast to Texas Governor Rick Perry, whose board of regents appointees have finally succeeded in easing out UT President Bill Powers because of his opposition to Perry's apparent plan to convert a great research university into a business training program taught mostly by non-scholars.
Part of the power struggle between Perry and UT is Texas-specific (e.g., Aggie versus Longhorn) but much of it resonates with broader trends on the right. Think of Rick Santorum's reaction to President Obama's proposal to make college accessible to all Americans: "what a snob!" As Professor Buchanan noted, that is of a piece with a long-running strategy by the right of attacking universities and their disproportionately liberal faculty as out-of-touch elitists. But in the past, one had the sense that this approach was strategically hypocritical--and thus paid the tribute that vice pays to virtue. Think, for example, of the absurdity of George H.W. Bush, a phi beta kappa graduate of Yale, running a successful Presidential campaign against Michael Dukakis as an out-of-touch elitist Harvard man. If Bush pere played the anti-intellectual card, at least, one had the feeling, that he had the good sense not to mean it.
Much has been made lately of the divide between "establishment" Republicans and Tea Party Republicans. The cleavage runs mostly along the line of economic policy, but to some extent there is a deeper division: Tea Partiers are populists, whereas establishment Republicans often try to harness populist ressentiment for their own ends but they do not ultimately want to bring down the institutions that serve their interests. Elite research universities are among those institutions: they help drive long-term prosperity and they actually do much to preserve the status of the well-to-do from one generation to the next, because low socioeconomic status correlates with weaker credentials and less ability to afford higher education.
One way of understanding Judge Higginbotham's opinion in Fisher is as the credo of an establishment Republican defending an elite research university. He is not a liberal but a Reagan appointee who is, overall, a moderate conservative. Contrast his approach with the position taken by Justice Thomas in Grutter that the University of Michigan Law School lacked a compelling interest in its affirmative action program because Michigan lacked a compelling interest in running an elite law school in the first place. Justice Thomas is not, of course, formally affiliated with the Tea Party, just as Judge Higginbotham is not formally affiliated with the "establishment"; indeed, there is no such thing. But still, one can understand their different views in this light.
For those of us who think research universities serve a valuable social function (even as we would like to see more efforts to improve education for everyone at every level and to reduce barriers to higher education), there is a dangerous development looming. Just as the Tea Party has dragged even those establishment Republicans who remain outside the Tea Party to the right on economic and other issues, so too here, the populists who really do despise universities can influence the policies pursued by establishment types.
The danger is already materializing in Texas (and elsewhere). Due to his nuanced views on immigration, Rick Perry is no hero to the Tea Party, but his attack on UT does seem to be of a piece with Tea Party sentiments. What's more, it appears to be genuine. Unlike George H.W. Bush--whose anti-intellectualism was simply disingenuous cynicism--Perry and the next wave of Republican leaders, whether of the establishment or Tea Party variety, are sincerely uniting behind their efforts to gut higher education.
On Tuesday, the U.S. Court of Appeals upheld the University of Texas' use of race in undergraduate admissions in Fisher v. University of Texas, on remand from last year's SCOTUS ruling in the same case. Judge Higginbotham's majority opinion is thorough and, in my view, persuasive. The new ruling raises a number of very interesting issues, but in the interest of brevity, after a brief overview, here I'll focus on just two: 1) the nature of the disagreement between the majority and the dissent by Judge Garza; and 2) Fisher's relation to efforts by some conservatives to gut higher education.
Before coming to those points, here is a very brief refresher. For many years, UT followed the practice of other elite universities of granting admissions to excellent applicants based on a "holistic" evaluation of their high school grades, test scores, and other special factors. That last category included a great many things, such as: athletic prowess; other extracurricular excellence; public service; alumni legacy status; and racial diversity. Then, in 1996, a Fifth Circuit ruling in the Hopwood case read Supreme Court precedents as essentially forbidding all uses of race in admissions. That decision was effectively reversed by the SCOTUS seven years later in Grutter v. Bollinger, but in the meantime, Texas had adopted the "ten percent plan"--under which students graduating in the top ten percent of their Texas high school classes were guaranteed admission to a UT campus.
As various Supreme Court justices have recognized, and as Judge Higginbotham recognizes in this week's ruling, the ten percent plan achieves substantial diversity in large measure because of the de facto segregation of Texas schools. Most African American and Latino high schoolers in Texas attend schools that are overwhelmingly non-white. Accordingly, the top ten percent of those schools are mostly minority students. Thus, even though minority students, on average, have lower test scores and other academic qualifications, the ten percent plan enables the UT system to enroll substantial numbers of minority students without expressly classifying applicants by race.
Roughly 80% of UT students are admitted under the ten percent plan. At issue in Fisher is the use of race in the "holistic" process for the remaining 20% of the seats in each entering class. Fisher--a white applicant who fell outside of the top ten percent and was then denied admission under the holistic process--complained that race played an impermissible role in the holistic process. Because UT already achieved substantial racial diversity using the (nominally) race-neutral top ten percent process, she argued, it did not need to include race as a factor in the holistic process. And because the SCOTUS precedents require that race-based admissions program be narrowly tailored, she argued further, using race in the holistic process was invalid.
Although the SCOTUS case in Fisher was hyped as a potential game-changer with respect to race-based affirmative action in higher education, the actual decision was quite narrow. In a 7-1 ruling (with Justice Kagan recused and only Justice Ginsburg dissenting), Justice Kennedy's majority opinion vacated and remanded the initial Fifth Circuit decision. That earlier decision had rejected Fisher's challenge, but the SCOTUS said that the Fifth Circuit had applied the wrong legal standard in part of its analysis. Colleges and universities are entitled to deference in their decision to pursue the compelling interest of racial diversity as part of their academic mission, Justice Kennedy explained, but courts should not defer to state educational officials in the application of the narrow tailoring test.
For readers interested in deeper background, here is a Verdict column I wrote when the SCOTUS granted cert in Fisher, here is a blog post of mine describing the amicus brief I worked on for the Association of American Law Schools, and here is my reaction to the SCOTUS ruling in Fisher on the day it was decided. In that last piece, I said that the action would shift to the lower courts to hash out, in practice, just how strictly to apply narrow tailoring in affirmative action cases. And this week's Fifth Circuit ruling appears to vindicate that prediction.
1) The disagreement
Judge Higginbotham explained that the use of race in the holistic process for the non-top-ten percent seats was narrowly tailored, even without giving the university any deference on that score. As I noted above, his reasoning is careful and thorough. But buried within it is a crucial--and controversial--statement. Quoting the majority opinion in Grutter, Judge Higginbotham stated that "strict scrutiny must not be strict in theory, but fatal in fact." That language has a long history, which is worth unpacking.
The late Gerald Gunther first described the strict scrutiny test applicable to race-based classifications as "strict in theory, but fatal in fact." And so it was with respect to race-based classifications that disadvantaged minorities. But beginning in the 1970s, the liberal and moderate justices on the Supreme Court argued that a more deferential approach should be applied to race as used to advantage minorities. They lost the battle when, in a series of cases from the late 1970s through the mid-1990s, the Court ruled that strict, rather than intermediate, scrutiny applies to all race-based classifications, but the liberal/moderate wing of the Court appeared to win the war: Even as the Court extended strict scrutiny to federal race-based affirmative action in Adarand v. Pena, Justice O'Connor's lead opinion explained that in this context strict scrutiny is not fatal in fact. Justice O'Connor repeated the line in Grutter, now speaking for a clear majority of the Court, and this time putting her money where her mouth was: the Court upheld the University of Michigan Law School's use of race in its holistic process.
Since Justice Alito replaced Justice O'Connor, Court watchers have been waiting to see whether Grutter would be overruled, as hers was the decisive vote in that case. It hasn't--yet. But even as the Court accepts the holding of Grutter, it has seemed to back away from Justice O'Connor's view that strict scrutiny is not quite as strict in affirmative action cases.
The disagreement between the majority and dissent in this week's Fifth Circuit decision in Fisher reflects this same tension. Although not deferring to the university, the majority's version of strict scrutiny allows the university some wiggle room to pursue racial diversity. Meanwhile, the dissent does perfunctorily say that strict scrutiny is not necessarily fatal scrutiny, but it also says that "there is no special form of strict scrutiny unique to higher education admissions decisions."
If the Fisher case goes back to the SCOTUS--and to be clear, I think it should not--one can well imagine that the Court might divide on this same question.
2) Excellence in higher education
Meanwhile, it is easy to overlook what the holistic process is really about. As Judge Higginbotham notes, minorities make up a smaller percentage of students admitted under the holistic process than those admitted under the ten percent process. The holistic process is an attempt to ameliorate the harmful effect of the ten percent process on the quality of the UT student body. After all, a student who graduates number 12 out of 100 from an excellent high school will likely be better prepared for university study than a student who graduates number 9 out of 100 from a troubled high school. The holistic process is not a means to enhance the racial diversity of UT; it is an effort to enhance the overall quality of the student body, with race playing a relatively small role in that process.
Judge Higginbotham clearly approves of UT's efforts to maintain its status as an elite university without sacrificing diversity. That attitude stands in marked contrast to Texas Governor Rick Perry, whose board of regents appointees have finally succeeded in easing out UT President Bill Powers because of his opposition to Perry's apparent plan to convert a great research university into a business training program taught mostly by non-scholars.
Part of the power struggle between Perry and UT is Texas-specific (e.g., Aggie versus Longhorn) but much of it resonates with broader trends on the right. Think of Rick Santorum's reaction to President Obama's proposal to make college accessible to all Americans: "what a snob!" As Professor Buchanan noted, that is of a piece with a long-running strategy by the right of attacking universities and their disproportionately liberal faculty as out-of-touch elitists. But in the past, one had the sense that this approach was strategically hypocritical--and thus paid the tribute that vice pays to virtue. Think, for example, of the absurdity of George H.W. Bush, a phi beta kappa graduate of Yale, running a successful Presidential campaign against Michael Dukakis as an out-of-touch elitist Harvard man. If Bush pere played the anti-intellectual card, at least, one had the feeling, that he had the good sense not to mean it.
Much has been made lately of the divide between "establishment" Republicans and Tea Party Republicans. The cleavage runs mostly along the line of economic policy, but to some extent there is a deeper division: Tea Partiers are populists, whereas establishment Republicans often try to harness populist ressentiment for their own ends but they do not ultimately want to bring down the institutions that serve their interests. Elite research universities are among those institutions: they help drive long-term prosperity and they actually do much to preserve the status of the well-to-do from one generation to the next, because low socioeconomic status correlates with weaker credentials and less ability to afford higher education.
One way of understanding Judge Higginbotham's opinion in Fisher is as the credo of an establishment Republican defending an elite research university. He is not a liberal but a Reagan appointee who is, overall, a moderate conservative. Contrast his approach with the position taken by Justice Thomas in Grutter that the University of Michigan Law School lacked a compelling interest in its affirmative action program because Michigan lacked a compelling interest in running an elite law school in the first place. Justice Thomas is not, of course, formally affiliated with the Tea Party, just as Judge Higginbotham is not formally affiliated with the "establishment"; indeed, there is no such thing. But still, one can understand their different views in this light.
For those of us who think research universities serve a valuable social function (even as we would like to see more efforts to improve education for everyone at every level and to reduce barriers to higher education), there is a dangerous development looming. Just as the Tea Party has dragged even those establishment Republicans who remain outside the Tea Party to the right on economic and other issues, so too here, the populists who really do despise universities can influence the policies pursued by establishment types.
The danger is already materializing in Texas (and elsewhere). Due to his nuanced views on immigration, Rick Perry is no hero to the Tea Party, but his attack on UT does seem to be of a piece with Tea Party sentiments. What's more, it appears to be genuine. Unlike George H.W. Bush--whose anti-intellectualism was simply disingenuous cynicism--Perry and the next wave of Republican leaders, whether of the establishment or Tea Party variety, are sincerely uniting behind their efforts to gut higher education.