Fisher v. Texas Article
Reaching “Critical Mass”: Fisher v. University of Texas and Affirmative Action
Over the last month or so, our Supreme Court has developed a rather unsatisfactory habit
of side-stepping rulings on important legal issues.1 One of these decisions had in the
opportunity, in the long run, to affect as many people as its rulings on same-sex unions, if
not more. Fisher v. University of Texas at Austin, the latest challenge to the use of
programs which consider race in university applications, would have been a prime
opportunity for the Court to re-examine and rectify an issue, which otherwise remains
clear as the Mississippi River mud with which Mark Twain was so familiar.
The original complaint was filed by two students who were denied entrance to the
flagship public university of their state, UT at Austin. They claimed that the
consideration of “race as a plus” factor in Texas’ ‘Top Ten Percent Plan’ violated her
Equal Protection rights. Under consideration here are: 1) Did Texas properly implement
race as holistic factor under the Constitution and previous rulings, such as Grutter v.
Bollinger? And 2) Is a “critical mass” of minority students in the classroom a legitimate,
narrowly-tailored government interest, or is it merely racial quotas under a different
name?2
The Court decided last week to send the case back to the Court of Appeals for the Fifth
Circuit, essentially leaving the constitutionality of the use of race in these policies open to
further debate.3 The only reason the Court voted in this way was so that strict scrutiny
could be applied, as with all suspect racial classifications. Therefore, the legal framework
of a narrowly-tailored government interest and a “least-restrictive alternative” fits best
here.
Under this framework, Texas’ Top Ten Percent Plan fails to hold up, as it is implemented
in a way which elevates candidates based on race by scoring some applicants higher than
others. For decades prior to creating the TTPP, the Personal Achievement Index was
UT’s method of evaluating potential applicants, through a single, holistic, raceindependent review of each applicant using traditional markers, such as test scores,
extracurriculars, volunteerism, and leadership. Enacted in 1996, in response to dropping
minority enrollment, the TTPP guarantees spots at the state universities for the top ten
percent of high school seniors.4 Although it is never supposed to be assigned a specific
number,5 some races are assigned higher test scores,6 resulting in an admissions policy
which does not use the least restrictive means to evaluate applicants.
This is a two-tiered system which attempts to circumvent the kind of well-rounded
review described in abstract by former Chief Justice O’Connor in Grutter. While PAI
reviews are a race-conscious means at looking a variety of factors, TTPP is not. Many
minority applicants—80% of African-American students, and 85% of Hispanic
students—were admitted under the TTPP; and, when there is no end limit in mind in
reviewing these applications,7 it creates a nebulous category for everyone involved. The
students who stand to potentially gain from such a system are at the mercy of a university
which does not have a specific applicant in mind, and the university stands to elevate
those applicants who might not otherwise be qualified.
The “critical mass” concept laid out in Grutter8 dictates that there ought to be a certain
proportion of minority students to prevent feelings of isolation, promote social inclusion,
and overall contribute to the perspective and points of view at a college campus. While
this is a perfectly desirable goal for all college campuses, it is a numbingly vague precept
when applied to Fisher. If there is no set goal in mind with TTPP, the university does not
know when it has reached this supposed “magic number,” in admissions. UT sought to
create diversity that mirrored the nation’s, not just in its graduating class, but in each
classroom;9 this is certainly the most open use of race to elevate students. Is the state to
decide what percentage of these applicants is proper? Or who gets to take which classes
in the thousands offered at UT? In this case, using a proper percentage of seats would on
its face violate UC Regents v. Bakke, the original affirmative action case from 1978
which declared quotas unconstitutional.
With such a vague precept as “critical mass” in the loop, the university has no specific
means by which to promote the presence of multiple perspectives inherent with minority
applicants. Without even getting into whether or not this policy has created effects which
are substantial enough to warrant a necessary government action, following Grutter’s
critical mass ‘guideline’ is not a narrowly-tailored interest. Now that Fisher has been sent
down to the Fifth Circuit, it should be ruled unconstitutional, as it fails that prong of the
strict scrutiny test.
Like a referee marking a foul in a soccer match, any ruling or set of rulings on affirmative
action will be bound to upset somebody; our High Court is vested with the responsibility
of forming some form of balance among the competing interests of the students and the
universities. With this case, the Supreme Court had the opportunity to better define the
sorts of strategies that our legislatures must defend as matters of policy. At the very least,
the imprimatur of strict scrutiny can lead to better results for the millions of students in
one of the largest states in the Union. For now, it would appear that the nine Justices
deserve a yellow card instead of a red.
1
See Fisher v. University of Texas, which is the subject of this note; Hollingsworth v.
Perry, in which the Court dismissed a challenge to California’s Prop 8 on procedural
grounds (standing); and Maryland v. King, in which the concurrence relied on what
Justice Kennedy called ‘identification’ procedures as the justification for taking DNA at
the time of arrest. Perhaps subjects for a paper on a rainy day when the Mets aren’t
playing…
2
Kimberly A. Pacelli, Fisher v. University of Texas at Austin: Navigating the Narrows
between Grutter and Parents Involved. 60 Me. L. Rev. 575 (2011).
3
Joy Resmovits, Fisher v. University of Texas At Austin Ruling Leaves Universities in
Limbo. Retrieved 28 June, 2013: www.huffingtonpost.com.
4
See Pacelli, at 571.
5
Ibid, at 583.
6
Brooks H. Spears, If the Plaintiffs are Right, Grutter is Wrong: Why Fisher v. University
of Texas Presents an Opportunity for the Supreme Court to Overturn a Flawed Decision.
46 U. Rich. L. Rev. 1136 (2011).
7
See Pacelli, at 584.
8
Grutter v. Bollinger, 539 U.S. 306, slip op. at 5.
9
Clegg, Roger and John S. Rosenberg, Against “Diversity.” Academic Questions 25:3
380 (2012).