On October 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, the latest in a series of cases in which the court has struggled to decide whether universities that are attempting to increase the numbers of African-Americans and Hispanics in their student bodies have gone too far and thus violated the equal protection clause of the Constitution. Judging from the transcript of the argument, confirmed by most press reports, it is hard to see how the university will prevail. Although there are aspects of the case that might have caused the court not to reach the merits or to decline to hear it all, it does not appear as if the majority is troubled by them. Thus, the real question does not seem to be which side will prevail, but what the court will do to the future of affirmative action generally.
Fisher attracted more than 90 amicus briefs that provide the court with a vast array of policy and legal arguments about issues ranging from the importance of assuring broad diversity in both undergraduate and graduate education, to the history of discrimination against blacks at the university, to the impact of affirmative action on Asian-Americans who themselves were victims of discrimination, but not slavery, to arguments about the harms that sometimes befall those who are the supposed beneficiaries of these programs. Studies and counterstudies were presented to the Supreme Court that were never before the trial court, with no obvious way for the justices to sort through them, let alone any clear rules on how much they should be taken in account, or how to resolve the seemingly contradictory descriptions of what they conclude. Whatever the problems these policy briefs raise, the court has become so accustomed to receiving and utilizing them, that is seems unlikely that it will not rely on some of them, at least for re-enforcement of conclusions reached on other bases.
The court’s prior opinions in this area have not set forth a clear path — or at least not one that the current court is likely to follow. Fisher is an important case for all universities, public and private, and the decision will have to be implemented by thousands of admissions officers who make the actual decisions on who is admitted. There will be a real temptation for the court to write a detailed code of “mays” and “may nots” in effort to end the practices it concludes are discriminatory, but it should do its best to resist that approach for several reasons.
A NARROW LEGAL ISSUE
First and foremost, Fisher is a lawsuit challenging a specific practice in the admission of undergraduate students at a large public university. The Texas Legislature has directed that any student in the top 10 percent of his or her high school class in Texas shall be admitted to the undergraduate program at the university. That law has produced between 60 and 80 percent of the students, including significant numbers of black and Hispanic students, but the university has decided that the law did not solve what it saw as the need for further diversity. As part of a complicated process of admitting the remainder of the class, it has authorized admissions officers to take race into account in a “holistic” approach that looks at each applicant’s achievements and background, with one of six factors — special circumstances — that includes race. There is no racial quota or even a goal, and it is impossible to tell how much of a boost, if any, an individual applicant receives. But there is no question that some minority students are admitted because of this racial preference who would not otherwise be admitted. After all, that is what the program is designed to achieve.
Assuming that the court continues to permit racial diversity as an acceptable basis for some forms of racial preference — although even that assumption may no longer hold with the departure of Justice Sandra Day O’Connor, who defended it — the precise legal issue in Fisher is whether the Texas program is “narrowly tailored” to achieve that indeterminate end. In other words, the only question that the court has to decide is whether this “holistic” process goes too far in favoring certain minorities, and it need not opine on any other admissions program at any other school.
Courts are not legislatures, and they do not, and should not, simply say whether a practice violates the Constitution, but must explain why. Such explanations will inevitably provide some guidance to universities in similar situations, and the question is how much, of what kind and at what level of specificity. If the court were to declare that racial preferences of any kind or degree are no longer a constitutional means of achieving racial diversity, or that racial diversity itself were an impermissible goal for public institutions, that would produce a clear outcome, but one unlikely to be found acceptable to a substantial majority of Americans.
One avenue for the court is to conclude that, once a state has chosen to institute a system like Texas’ top 10 percent, which itself helps produce racial diversity because racial segregation in housing leads to racially segregated high schools in some parts of the state, a state may go no further. That would be a very narrow ground for a decision and would leave Texas free to choose to abandon the top 10 percent practice and would leave open the opportunity for other universities to use approaches like the Texas holistic one, so long as they do not have another racial preference overlay like the top 10 percent law.
NEED FOR TRANSPARENCY
One ruling that the court can and should make, and that will not deprive any university of any existing option, is to announce that an essential element of narrow tailoring is that universities must be transparent about what they are doing in awarding racial preferences. That should include what exactly the university is doing, how much a preference the program is intended to produce (or has produced), and who in the university is responsible for the decision to implement such a system. All too often in the past, such systems have barely been acknowledged, and their actual operation and impact have become known only after a lawsuit is filed and discovery taken. If diversity is, as I believe, an important goal of all higher education programs, those who design the systems by which diversity is being achieved should be proud and trumpet them and not shroud them in secrecy.
Beyond that, the court should be very wary of issuing an opinion that amounts to a detailed code of affirmative action. The Burger Court did that for abortions in 1973 in Roe v. Wade, when it not only held that the very broad prohibitions being challenged there were unconstitutional, but went on to tell states how to structure their laws governing abortion, much the way that a superlegislature might do. Even a narrow decision striking down the laws challenged there would have been controversial, but the legislative-type approach made Roe subject to criticism even from those who supported its conclusion that those specific laws were unconstitutional.
A detailed set of prescriptions in the area of racial preferences for colleges and universities would be even more inappropriate. Human anatomy and the laws of nature regarding pregnancy do not vary from state to state, but there is enormous variation among the states, and even within states, regarding the goals, sizes, structures and missions of institutions of higher education. Some attract mainly in-state students, while others are national. The problems of achieving diversity at the undergraduate level are different from those at a graduate school. Elite schools can learn to live with almost any rules and still achieve diversity, but others might have much more difficulty, depending on what the court says can and cannot be done.
The presence of the large number of amicus briefs, presenting a wide range of views on all sides, might suggest to the court that it has enough information to be able to craft a sensible solution. To the contrary, an examination of even a few of those briefs demonstrates that there are stark policy choices to be made, based on which arguments one finds most persuasive and which studies are most reliable. Those are exactly the kinds of choices that are much more appropriately made by an open process conducted by the other branches of government, in this case the Texas Legislature, working in conjunction with the governor, the board of regents of the university, and those in charge of undergraduate admissions. Moreover, any solution that came from the political processes would be subject to ongoing public input as it was developed. Other colleges and universities, at all levels, would undertake similar processes and develop their own solutions that best conform to their needs and circumstances. On the other hand, if the court decreed a given outcome, that public process would not take place, and with it the lost opportunity for modifications of specific aspects of the court’s solution, based on comments from those who will know far more about the process than do the justices.
The Texas holistic approach is a modest and reasonable means to supplement the top 10 percent law for undergraduates at the University of Texas. If the Supreme Court concludes otherwise and does not end all racial preferences, it should write as narrow an opinion as possible, leaving open other avenues to achieve diversity. The court lacks the information and tools to write a code of permissible affirmative action, and it should mightily resist any temptation to do so.
Alan B. Morrison is Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University Law School. The writer did not file a brief in Fisher, but he did participate in a moot court for the lawyer who argued the case for the university.