Understanding Fisher

July 2nd, 2013 / By Ruth Colker

[We are pleased to present a guest post by Ruth Colker, Distinguished University Professor and Heck-Faust Chair in Constitutional Law, Moritz College of Law, The Ohio State University. This discussion is cross-posted from Professor Colker’s blog.]

What can a law school admissions officer learn from a close reading of Fisher v. University of Texas? A bit. (more…)

» Read the full text for Understanding Fisher

What Does Fisher Mean?

June 26th, 2013 / By Deborah J. Merritt

What does the Supreme Court’s enigmatic Fisher opinion mean for the daily operation of an admissions office? In particular, what does it herald for law school admissions? At first glance, Fisher seems to extend the status quo for affirmative action. The Court did not strike down the University of Texas’s race-conscious plan. Nor did it overturn the 2003 Grutter decision approving Michigan Law School’s approach to affirmative action during the 1990’s. A school that follows a procedure like the one Michigan successfully defended in Grutter, therefore, must be on safe ground–right? I’m not so sure.

Fisher Basics

On the surface, Fisher‘s holding is easy to digest. The Court held that:

(1) Courts must apply strict scrutiny to explicit consideration of race in university admissions.

(2) An “interest in the educational benefits that flow from a diverse student body” counts as a compelling interest. Indeed, the Court has recognized no other interest that counts in this context.

(3) Courts will defer to a university’s decision that it needs the educational benefits of diversity. A court must “ensure that there is a reasoned, principled explanation for the academic decision,” so academic institutions would be wise to build a record supporting their need for educational diversity. The courts, however, will not second-guess this conclusion if it is articulated and supported properly.

(4) Courts, on the other hand, must closely examine a university’s claim that its race-conscious program is narrowly tailored to achieve educational diversity. The university bears the burden of persuasion on this point, and courts will “examine with care” the university’s assertion.

What does an academic institution have to show to meet the narrowly-tailored prong of strict scrutiny? This is the key issue raised by Fisher. This is also the area in which the opinion includes more nuance than a first reading might suggest.

Narrowly Tailored

The Fisher majority pointed to two different showings that a university might have to make under the narrowly-tailored prong. The first is that the race-conscious process was “necessary” to achieve the university’s goal of attaining a diverse student body. If “workable race-neutral alternatives would produce the educational benefits of diversity,” then the university must embrace those methods instead of race-conscious ones.

This part of the ruling addresses a point that the Fisher plaintiffs stressed: Since the University of Texas had already achieved significant racial diversity through a legislatively imposed “top ten percent” plan, did the university really need additional race-conscious measures?

The Court didn’t answer this question, leaving it to the lower courts on remand. Texas, however, offered pretty persuasive justifications for its “add on” plan in the brief it submitted to the Court. The University pointed out that the ten-percent plan overlooks minority students who attend schools with no class rank; some of the state’s top private schools fall in that category. The ten-percent plan also omits minorities who perform well (but not within the top decile) at magnet schools and other challenging high schools. The University wasn’t aiming simply to enroll a given number of minority students; it wanted diverse students from a variety of backgrounds. The ten-percent plan couldn’t deliver that nuanced diversity.

I think Texas may prevail on this point in the lower courts–and even win affirmance from the Supreme Court if the case returns to that docket. But this portion of the narrowly-tailored discussion is irrelevant to law schools. We don’t have a “top ten percent” alternative, and there are no “workable race neutral” mechanisms that seem likely to create the racially diverse student bodies that law schools seek–and that seem more educationally valuable with every passing year.

Law schools may be able to show that race-conscious admissions policies are necessary to produce racially diverse classes. It’s the second, less noticed part of Fisher‘s “narrowly tailored” discussion that law schools should worry about.

Evaluating Applicants as Individuals

Justice Kennedy, writing for the Court in Fisher, stressed that a race-conscious admissions plan is narrowly tailored only if the “admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.'” This language stems from Grutter‘s majority opinion, and ultimately from Justice Powell’s opinion in Bakke, so law schools may assume that they’re on safe turf as long as they’re following processes upheld in the past–like the one Michigan successfully defended in Grutter.

The picture, unfortunately, is more complicated. Remember that Justice Kennedy dissented from Grutter, complaining that Michigan wasn’t really evaluating applicants as individuals. The school did review files holistically, without assigning a specific numerical plus to minority status. This “individualized” assessment, however, yielded a percentage of enrolled minority students that Justice Kennedy found suspiciously constant from year to year. The school’s admissions director also acknowledged that his office generated daily reports that tracked the racial composition of the evolving class. Especially during the final stage of the admissions season, this composition could affect the students chosen for admission.

Justice Kennedy concluded that this process preserved “individual evaluation” only during the early stages of admission. At later stages in the process, “an applicant’s race or ethnicity” might well become “the defining feature of his or her application.” The five Justices in the Grutter majority were willing to grant Michigan this leeway. As Justice O’Connor wrote for the Court, “‘some attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” (quoting Justice Powell’s opinion in Bakke). She also perceived more variation in the racial composition of Michigan’s entering classes than Justice Kennedy did.

But Justice O’Connor is no longer on the Court; Justice Kennedy is the necessary fifth vote to support any form of race-conscious admissions in higher education. And Justice Kennedy is very serious about the need for individualized evaluation throughout the admissions process. That’s what he said in Grutter and that’s what he affirmed in Fisher, this time for the Court.

Sticking to Individual Evaluation

Fisher is bad news for any school that tracks racial composition while admitting a class. As Justice Kennedy wrote in Grutter, it is hard for a school to claim that race plays a small, contextual, highly individualized role in assessing applicants when a school tracks that characteristic carefully during the final stages of admission. But don’t all schools do this if they care about matriculating a critical mass of minority students?

Apparently not. In fact, this is the ultimate irony of Fisher. UT has structured its admissions program to avoid any consideration (or even knowledge of) race during the final stages of its admissions process. Race is one factor that may affect an applicant’s “Personal Achievement Index (PAI),” but race plays a small role in generating that score. More important, once a file-reader generates the PAI score for an applicant, later decision-makers don’t know the basis for that score. Each applicant’s PAI represents a combination of work experience, extracurricular activities, community service, socioeconomic condition, minority race, and several other factors. The University extends admissions offers to applicants with PAI’s and Academic Indexes above chosen levels. When choosing those levels, however, the admissions officers do not know the races of the students they are including.

This system seems tailor-made to satisfy Justice Kennedy’s strict requirement of individual evaluation. Race truly is just one factor that the school considers in the context of an applicant’s full record. Once race has contributed to the PAI, it disappears from the decision-making process. The system furthers the school’s compelling interest in matriculating a racially diverse class, because it counts an applicant’s contribution to that end among other contributions. The system, however, does not allow race to become “the definining feature” of an applicant’s file.

Law schools that use a system like this may comply with Fisher‘s exacting standard. Schools that track race, as Michigan did before Grutter, may not fare as well.

But Isn’t Grutter Still Good Law?

It may seem odd to suggest that a school following the admissions process upheld in Grutter runs a risk today. The Fisher Court, after all, reaffirmed Grutter‘s principles and noted several times that the parties had not asked it to reexamine Grutter. Certainly a lower court might uphold a Grutter-like plan with that rationale. “Since the Court upheld this type of plan in Grutter,” a lower court judge might reason, “and the Court hasn’t overruled Grutter, then this plan must be constitutional.”

Justice Kennedy’s majority opinion in Fisher, however, offers support for a different conclusion. The opinion focuses on the need for lower courts to conduct searching scrutiny on the question of whether a race-conscious plan is, in fact, narrowly tailored. The Court specifically rebuked the Fifth Circuit and district court judge for being too deferential to the university. Lower court judges don’t like to be reversed that way; they’ll be reading Fisher closely for what the Court really wants.

On that score, there are two key sentences in Fisher. The first appears on page 12 of the majority’s slip opinion, where the Court declares: “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.” (emphasis added) Those italicized words are the essential ones; they hark straight back to Justice Kennedy’s dissent in Grutter. Lower courts cannot just accept a university’s description of multiple factors and holistic review; the courts must examine what the university actually does throughout its admissions process. If the university does things like track racial composition of the evolving class, Fisher raises a red flag.

The second sentence appears on the same page, in the preceding paragraph. There, Justice Kennedy notes that the Grutter Court “approved the plan at issue upon concluding that it was not a quota [and] was sufficiently flexible.” The paragraph continues, however, to observe that “the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.” This reservation differs from the Court’s earlier observation that it would not reexamine the legal principles in Grutter. Here, the Court notes that it has not been asked to reconsider the factual correctness of Grutter–a sure sign that the majority harbors some doubts about that result. And, of course, we know that at least five Justices would disagree with that result.

What’s a Law School To Do?

All of this is problematic for law schools, because we try to shape our classes so closely. I haven’t served on a law school’s admissions committee for twenty years, so I may be out of date. My impression as a faculty member, however, is that law schools track LSAT scores, GPAs, race, and perhaps some other indicators (such as gender or in-state status) quite closely throughout the admissions process. Schools are trying to meet certain targets for those criteria. The targets may be soft ones, rather than strict quotas, but they may not satisfy the “individual evaluation” that Justice Kennedy fervently demands.

I’m a long-time advocate of affirmative action in university admissions. I authored an amicus brief in Grutter and wrote most recently about the issues here. So I’m not trying to read Fisher in a way that would restrict the flexibility of educational institutions. Instead, I’m concerned that schools may assume that Fisher‘s “compromise” decision holds little of note. I think that would be a mistake. I would assess any race-conscious program through the prism outlined above.

This is also a good time for law schools, bar associations, and courts to invest in more pipeline programs. Race-conscious admission policies have helped diversify law school classes, but they operate at the margins. Pipeline programs reach students much earlier in their educational lives, giving them both the tools and inspiration to prepare themselves for a professional career. Students who participate in pipeline programs, furthermore, carry their ambitions back to their schools and neighborhoods, where they may inspire other students.

It’s important, finally, for law schools to continue exploring new ways of measuring and valuing diversity. Michigan Law School’s current application asks students to provide race and ethnicity for reporting purposes, but declares that the information “will have no bearing on the Law School’s admission decision.”

Instead, the school seems to gauge diversity through an open-ended personal statement and a series of optional essays. Applicants may address any issue in the required personal statement, including “significant life experiences; meaningful intellectual interests and extracurricular activities; . . . significant obstacles met and overcome; . . . issues of sexual or gender identity; . . . socioeconomic challenges; . . . or experiences and perspectives relating to disadvantage, disability, or discrimination.” These topics allow applicants of any race to paint a holistic picture of themselves, including ways in which they might contribute to diversity of the student body.

Similarly, one of Michigan’s optional essays invites applicants to “describe an experience that speaks to the problems and possibilities of diversity in an educational or work setting,” while another optional prompt asks: “How might your perspectives and experiences enrich the quality and breadth of the intellectual life of our community or enhance the legal profession?” These portions of the application, I assume, enable Michigan to assemble a diverse class (on many dimensions) without allowing race to become a “defining feature” of an application.

Skeptics might claim that schools using essays like these are “really” looking just for racial identity. That, though, underestimates both the goals of admissions committees and the complexity of race. Race has never been a simple, binary concept, but its complexities have compounded. Increased immigration, a growing number of citizens who identify as multiracial, majority-minority urban centers, and a host of other factors mean that today’s minority Americans experience race in hundreds of different ways. Schools that want to enroll racially diverse classes, as well as white students who perceive the pervasive impacts of race–need to probe racial experience more deeply than just asking students to tick off a box. Pushing ourselves to think beyond those boxes, ironically, may help us preserve the racial diversity that the boxes initially helped us achieve.

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