By Allen Smith
In a case that could affect corporate diversity efforts, the U.S. Supreme Court heard arguments Oct. 10, 2012, over the University of Texas’ use of race in admissions as part of its affirmative action program (Fisher v. University of Texas, No. 11-345).
Abigail Fisher, a white Texan, applied to the University of Texas at Austin for admission to the undergraduate class in the fall of 2008.
Since 1997, the Top 10 Percent Rule has guaranteed that Texas high school students who have graduated in the top 10 percent of their class are automatically admitted to state public universities. In 2008, students benefitting from this law made up 88 percent of the entering class. Fisher did not meet this criterion and competed for one of the remaining places in the class.
The university screened remaining applicants based partly on their “personal achievement,” which encompassed leadership, work experience, extracurricular activities, community service, socioeconomic status, family status and race, according to a friend-of-the-court brief filed by the Equal Employment Advisory Council (EEAC), which is a nonprofit association that provides guidance to its 300 member corporations on equal employment and affirmative action compliance.
Admissions Policies Upheld
Denied admission, Fisher sued the university, claiming its admissions policy violated her 14th Amendment right to equal protection.
A district court upheld the admissions policy. The 5th U.S. Circuit Court of Appeals affirmed, concluding that the university’s use of narrowly tailored race-conscious admissions was “adequately supported by the ‘serious, good-faith consideration’ required by Grutter,” a reference to the U.S. Supreme Court’s ruling in Grutter v. Bollinger, 539 U.S. 306 (2003). (The University of Texas reintroduced race-conscious admissions the day Grutter was decided.)
In Grutter, the Supreme Court ruled that the 14th Amendment’s Equal Protection Clause did not prohibit the University of Michigan Law School’s narrowly tailored use of race in admissions decisions.
The enrollment of a “critical mass” of minority students merely to reach some set percentage would be unconstitutional, but Michigan defined its “critical mass” concept by emphasizing diversity’s educational benefits. The court noted that numerous studies supported Michigan’s approach and showed that diversity better prepared students for an increasingly diverse workforce and society.
At oral argument in Fisher’s case, Justice Stephen Breyer asked her attorney, Bert Rein of Wiley Rein in Washington, D.C., if the court should overrule Grutter.
Rein replied no, adding, “You can fashion a result in this case, which may or may not have to ‘overrule’ Grutter.”
“So you don’t want to overrule Grutter; you just want to gut it,” Justice Sonia Sotomayor remarked.
“I don’t want to gut it,” Rein answered. “The only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without an end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable.”
‘Critical Mass’ of Minority Students
Sotomayor also asked Rein to clarify how the University of Texas defined a “critical mass” of minority students.
“Could you tell me what a ‘critical mass’ was? I’m looking at the number of blacks in the University of Texas system. Pre-Grutter, when the state was indisputably still segregating, it was 4 percent. Today, under the post-Grutter system, it’s 6 percent. The 2 percent increase is enough for you, even though the state population is at 12 percent? Somehow, they’ve reached a critical mass with just the 2 percent increase?”
“We don’t believe that demographics are the key to underrepresentation of critical mass,” Rein said.
“Do you understand what the University of Texas thinks is the definition of a ‘critical mass’? Because I don’t,” Justice Samuel Alito Jr. asked.
“It simply reiterated the language of Grutter. They have no definition,” Rein replied.
“Does ‘critical mass’ vary from group to group? Does it vary from state to state?” Alito asked the university’s’ attorney, Gregory Garre of Latham & Watkins in Washington, D.C.
“It certainly is contextual,” Garre said.
Trying to put the Texas Top 10 Percent Rule into context, Justice Ruth Bader Ginsburg asked Garre to explain “what seems to me the critical question in this case: Why didn’t the 10 percent solution suffice?”
“If you looked at the numbers after seven years, racial diversity among these groups at the University of Texas had remained stagnant or worse. In 2002, African American enrollment had actually dropped to 3 percent,” Garre answered. The top 10 percent may result in diversity that looks fine on paper, but doesn’t guarantee educational benefits, he added.
“So, what you’re saying is that what counts is race above all,” said Justice Anthony Kennedy.
“No, your honor, what counts is different experiences,” Garre answered, saying he didn’t think 3 percent was a critical mass of minority students.
“But would 3 percent be enough in New Mexico, your bordering state, where the African American population is around 2 percent?” Alito asked.
“I don’t think it would,” Garre said. “It’s undisputed that we’re taking race into account only to consider individuals in their totality,” he added.
“But race is the only one of your holistic factors that appears on the cover of every application,” Chief Justice John Roberts Jr. remarked.
Garre answered that Fisher “is not challenging Grutter’s reaffirmation of the principle of Justice Powell’s opinion in Bakke [Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)] that student body diversity is a compelling interest that can justify the consideration of race in university admissions.”
In support of the University of Texas, the Solicitor General Donald Verrilli Jr. remarked, “I don’t think that this is a situation in which the court simply affords complete deference to the university’s judgment that it hasn’t yet achieved the level of diversity that it needs to accomplish its educational mission.” He added, “I don’t think there is a number, and I don’t think it would be prudent for this court to suggest that there is a number.”
“We should probably stop calling it ‘critical mass’ then, because mass, you know, assumes numbers, either in size or a certain weight,” said Justice Antonin Scalia.
“I agree,” Verrilli said. “The idea of critical mass has taken on a life of its own in a way that’s not helpful, because it doesn’t focus the inquiry where it should be.”
Chuck Sims, an appellate lawyer with Proskauer Rose in New York, noted in an Oct. 10, 2012, interview that the Supreme Court analyzes affirmative action requirements “quite differently” for federal contractors and institutions of higher education. Fisher’s case “ought to have no impact on Title VII,” which prohibits discrimination but does not require affirmative action.
In its brief, the EEAC put the significance of the case for employers into broader context. “Any decision that prevents our nation’s public universities from utilizing race- or gender-conscious measures to attract, admit, educate and graduate diverse student bodies will have a direct, negative impact on the ability of federal contractors to satisfy their federally imposed affirmative action mandates,” the EEAC stated. It “will pose significant hurdles for all employers seeking to derive a competitive business advantage by matching the diversity of their skilled workforces to the diversity of their customers and markets.”
The EEAC urged the Supreme Court “to be cognizant of these business needs and announce clear standards that allow colleges and universities some means of continuing to supply America’s business with qualified diverse candidates.”
Allen Smith, J.D., is manager, workplace law content, for SHRM.