What has changed since 2003 to make race-conscious admissions policies unconstitutional?

February 20, 2013

Civil Rights ThemeNearly all of our coverage of Fisher v. University of Texas has been under the assumption that the Supreme Court will strike down the use of race in higher education admissions processes.

Also part of this coverage, however, is the assumption that the Court will have to either overturn or greatly diminish the precedential value of 2003’s Grutter v. Bollinger.

It’s unusual for the Court to make such a drastic departure from such a recent ruling.  So, assuming the Supreme Court actually makes the predicted ruling in Fisher, what has happened in the past ten years to prompt this change?

In Grutter, a plurality held that the use of race in school admissions upheld by the ruling would no longer be necessary to further the interest of achieving a “critical mass” of minority students in 25 years’ time.

Has the need for those race-conscious policies vanished ahead of schedule at the University of Texas (UT)?

Not according to recent surveys of University students, which found overwhelmingly that minority students are feeling “isolated” and like “spokespersons for their race.”

If these surveys are taken as accurate, then “critical mass” has certainly not yet been reached, since “critical mass” as defined by Grutter was defined as a sufficient level of minority enrollment to “ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes.”

Then, what has changed over the past ten years to make the outcome of Fisher different than Grutter’s?

Quite frankly, the only real change is in the makeup of the Supreme Court.

Justices Kennedy, Thomas, and Scalia all dissented in Grutter, finding that achieving “critical mass” was not a compelling interest, and that the use of race should not be allowed in higher education admissions processes.

All three of those Justices are still on the bench.  Chief Justice Rehnquist – the other dissenter – has been replaced by Chief Justice Roberts, who, if his comments during oral arguments were of any indication, will vote in much the same manner as his predecessor.

The most decisive change is obviously from Justice O’Connor, who wrote the majority opinion in Grutter, to Justice Alito, whose comments during oral arguments place him on the opposite side of the fence from O’Connor.

However, it seems unlikely that the members of the Court would be willing to overtly strike down a ruling only ten years old.

Thus, although a Fisher ruling striking down the use of race in admissions would almost certainly render Grutter useless, the majority won’t word their opinion as such.  Instead of an overt overruling of Grutter, Fisher will be an “expansion” of the ruling.

What kind of “expansion?”

It actually will all come back to this definition of “critical mass.” 

During oral arguments, the vast majority of questions directed at UT and the federal government (intervening on the side of the school) by the conservative Justices were trying to get an exact number or goal to determine when “critical mass” would have been reached.

Naturally, the arguing attorneys facing these questions declined to provide a definition more specific than that provided by Grutter, since providing a specific number or goal for enrollment of minorities could very easily be interpreted as setting a quota – something held as explicitly unconstitutional by 1977’s Regents of the University of California v. Bakke.

And so, the question was never answered at oral arguments.  Although no one clearly labeled UT’s admissions policies as a veiled quota system, it still leaves the conservative Justices with several options.

First, they can still argue that the goal of achieving “critical mass” is still an unconstitutional quota system, and that proponents of the system have thus far declined to truly define when critical mass could be achieved because doing so would betray the system’s true nature as a quota one.

Next, they can argue that the definition of “critical mass” and its achievement is too vague to be “narrowly tailored” enough such that UT’s admissions policies could withstand the requisite strict scrutiny level of review.

Last is the option with the least deviation from the direction of Grutter: finding that Texas’s “Top Ten Percent” law (more about that here) is a neutral alternative to the UT’s current race-conscious admissions policies, and thus the latter policies are struck down.

That last option wouldn’t necessarily strike down similar policies nationwide as unconstitutional per se, but, since the Court would hold that there are less discriminatory alternatives, the admissions policies approved in Grutter and followed by UT would be effectively unconstitutional.

Any way you slice it, Grutter is essentially finished after Fisher is handed down (should my prediction hold true).

Unfortunately, this is not because of any change in circumstances outside the walls of the Supreme Court Building.