by Sally Chung
The U.S. Supreme Court’s history of affirmative action rulings has led to a dead end, in which the University of Texas “has to argue in favor of the system it really ought to be arguing against.” The legal catch-22: “Those who want to advocate for racial consciousness can only do so by recourse to reasoning, set forth by the Supreme Court, intended to restrict racial consciousness.”
Fisher v. UT Austin: The End of Affirmative Action as We Know It?
by Sally Chung
“Win or lose the battle, there is no option within the bounds of this discourse but to lose the war.”
Fisher v. UT Austin is the latest case in the saga against affirmative action. It raises the question of whether the success of a race-neutral alternative requires a university to stop using race as a factor in admissions.
It's full of bad arguments and should be impossible to win.
A brief examination of two issues featured in the case: the definition of "critical mass," and the "minimal effect" argument-shows how arguments advanced by the plaintiff, Fisher, and conservative justices of the Supreme Court force the University into an unworkable bind. Moreover, debate over Texas' so-called "race-neutral" plan puts the University in the perverse position of arguing in favor of something it should be arguing against. The only way for progressives to "win" Fisher, or any other argument over the constitutionality of affirmative action, is by upholding unsavory precedents that invalidate the very racial consciousness we ought to be fighting for. Win or lose the battle, there is no option within the bounds of this discourse but to lose the war.
The definition of "critical mass”
In Grutter, the Court decided that universities may consider race as a "plus" in evaluating an applicant's file in order to enroll a "critical mass" of minority students. This "critical mass" is described as "a number that encourages underrepresented minority students to participate in the classroom and not feel isolated... or like spokespersons for their race." Universities may, in pursuit of this "critical mass," maintain flexible goals or target ranges for minority enrollment. Universities may not, however, be so specific as to "impose a fixed number or percentage that must be attained" because that would be a quota, which is patently unconstitutional.
“In order to prevail, the University must vigorously deny that racial justice has anything to do with it at all.”
The Fisher case, in a departure from precedent, faults the University not for being overly specific but for being too vague. In oral argument, Fisher criticizes the University for failing to establish "even a working target for critical mass," claiming that it is impossible for the University's program to be narrowly tailored if there is not a defined target to tailor towards. Chief Justice Roberts further demands the University to tell him the precise number of minorities it would take to establish a "critical mass." But the University cannot possibly give a concrete number without being accused of using a quota. The University can take one of two stances and is damned either way:
* If the University does not have a specific definition for critical mass, its program cannot be narrowly tailored and is therefore unconstitutional.
* If the University does have a specific definition, its program uses a quota and is also unconstitutional.
Of course, the notion that there is some magical "critical mass" pedagogically suited to delivering the optimal amount of educational benefit from ethnic diversity is complete nonsense. The idea comes from Justice Powell's non-controlling opinion in Bakke, the first Supreme Court case to address racially conscious university admissions. Powell argued, and the Court in Grutter affirmed, that there is only one constitutionally permissible justification for affirmative action: "to obtain the educational benefits that flow from an ethnically diverse student body." In so doing, Powell rendered unconstitutional any justification that sought to remedy past racism or counter the effects of current societal discrimination. But the real reason why we should want affirmative action is not for the purported flowing educational benefits. We should want affirmative action for precisely the reasons Powell argued against – to advance racial justice by ameliorating the legacies of America's racist past and accounting for societal discrimination in the present. Instead of pretending to chase after a "critical mass," the University ought to freely and boldly defend its affirmative action policy as a stand against racism. But the University cannot make this argument. Indeed, in order to prevail, the University must vigorously deny that racial justice has anything to do with it at all.
The "minimal effect" argument
Fisher also makes the argument, drawn from Parents Involved, that the University's affirmative action program is unconstitutional because it does not admit enough minorities. This is curious enough on its face, as it essentially amounts to a white person claiming affirmative action should be dismantled for failing to deny admission to more white people. The "minimal effect" argument asserts that an insignificant increase in minority enrollment is not enough to warrant the violation of white people's right to equal protection, and that the same small outcomes should instead be achieved through race-neutral alternatives. This is a maddening argument: first the Court severely narrows the permissibility of racial consciousness to delimit its impact, then it claims that because racially conscious programs have a minimal effect, looking at race is unconstitutional.
* If the University instituted a straightforward racially conscious program to meaningfully increase minority enrollment, it would be using race as a determinative factor, which is unconstitutional.
* If it does not use race as a determinative factor, the University can't meaningfully increase minority enrollment, which is also unconstitutional.
Texas' "race-neutral" Top Ten Percent Plan
The alternative at issue in Fisher could hardly in good faith be considered race-neutral. Texas' Top Ten Percent Plan, which guarantees all public high school seniors in the top ten percent of their class admission to any public state university, was enacted post-Hopwood with the express intent of increasing minority enrollment. It is furthermore undisputed that the Ten Percent Plan depends upon the racial segregation of Texas' high schools in order to function.
Fisher, by arguing that the Ten Percent Plan adequately serves the compelling interest of generating the "educational benefits that flow from diversity," inadvertently advocates for the simple ethnic diversity that not only contradicts precedent but also would warrant explicit racial consciousness. The Ten Percent Plan is a blunt instrument that increases minority admissions without any attention to the holistic, individualized review required by Bakke and Grutter; it seeks to admit minority students simply because they are members of minority groups, albeit via facially race-neutral means. If Fisher wants to argue that this indiscriminate plan satisfies the compelling interest in diversity, then that interest must be in simple racial diversity because that is all the Ten Percent Plan accomplishes. If the interest is in simple racial diversity, then the University's program should look at race in order to be narrowly tailored to serve that interest. Looking at race would therefore be constitutional, and Fisher would not have a case. It's a self-defeating argument enabled by an unqualified devotion to colorblindness that prevents Fisher from recognizing the Ten Percent Plan for what it really is – a racially conscious effort to increase minority admissions.
“The Ten Percent Plan depends upon the racial segregation of Texas' high schools in order to function.”
Conversely, in order to defend its program of affirmative action, the University must argue that it doesn't want simple racial diversity and that therefore the Ten Percent Plan is not enough. This is a problem because while the University should not defend the deeply problematic Ten Percent Plan, it should definitely be fighting for racial diversity for the sake of racial justice. But instead the University has to assert that what it really wants is to mitigate the significance of race – it has to endorse the holistic and individualized review that Powell instituted to curtail the effectiveness of racially conscious admissions. It has to argue in favor of the system it really ought to be arguing against.
This is the crux of the problem with the affirmative action debate: those who want to advocate for racial consciousness can only do so by recourse to reasoning, set forth by the Supreme Court, intended to restrict racial consciousness.
When winning is losing, and losing is too. The possible outcomes of Fisher run a narrow gamut from bad to worse. The Court could:
* uphold the University's program as constitutional;
* rule that though diversity is a compelling state interest, the University's program is not narrowly tailored to serve that interest; or
* overturn Grutter to assert that diversity is not a compelling state interest, and therefore that all racially conscious admissions programs are unconstitutional.
“The possible outcomes of Fisher run a narrow gamut from bad to worse.”
First, while a decision that upholds the University's program would be relatively good, it would ultimately mean that affirmative action as it is presently construed and the jurisprudence underlying it would remain unchanged. Powell's troubling opinion, which notably manipulated the Fourteenth Amendment's Equal Protection Clause to protect whites from racial discrimination at the expense of minority rights, would once again be reinforced. Such a decision would fortify the status quo and encourage the continued neglect of racial justice. Second, a ruling that the University's program is not narrowly tailored would conceivably require – despite Grutter's unequivocal statements to the contrary – the exhaustion of race-neutral alternatives and relegate racially conscious programs as a last resort. This would only bolster the delusion of colorblindness, aggravating the idiocy of trying to address racism by pretending that racism doesn't exist. Finally, the Court could decide to overrule Bakke and Grutter, reject diversity as a compelling state interest, and completely foreclose the constitutionality of taking race into account. This final outcome's implications are so alarming that it could provoke a breakaway from the stifling confines of the prevailing affirmative action debate. Or it could just render legal recourse to racial justice impossible.
The only way for minorities to "win" this case is by arguing that the University is in complete compliance with Supreme Court precedent inimical to racial consciousness, and convincing the Court to produce yet another opinion further entrenching Justice Powell's legal artifice in Bakke as the proper interpretation of equal protection.
The only conceivable victory is not a victory in the least, but a perverse circumstance in which racial minorities must buttress the existing system that legitimates their continued oppression.
Sally Chung is a research analyst for a public interest law organization in Los Angeles. She graduated cum laude from Amherst College with a B.A. in Black Studies. She can be reached at sallyschung@gmail.com.
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