New York Times

The United States Supreme Court will hear arguments on Dec. 9 in Fisher v. University of Texas, a case challenging affirmative action in university admissions. Emily Bazelon, a staff writer for the magazine, and Adam Liptak, The Times’s Supreme Court correspondent, have been exchanging emails about the possible outcomes of the case and what they might mean at a moment of debate over race in American higher education.

Adam,

It’s been a season of attention to racial inequality on American college campuses. Across the country, sometimes eloquently and sometimes not (these are 18-to-22-year-olds), minority students and their supporters have channeled the spirit of Black Lives Matter and demanded more. More black and Hispanic and Asian and Native American faculty members. More resources. A greater sense of belonging.

The Supreme Court may be poised to make them settle for less, in the most basic form: fewer seats in the future entering college and university classes.

The justices will hear arguments on Wednesday in Fisher v. University of Texas, a case that challenges the consideration that the University of Texas, Austin, gives to race in admission. This is the second time the court has heard the claims of Abigail Fisher, a white woman who didn’t get into U.T. Austin seven years ago. The university says Fisher wouldn’t have gotten in even if race had played no role in the decision, because her other qualifications were lacking. Nonetheless, the justices let her case proceed, and now they’ve brought it back for a second round. That is not a good sign for supporters of affirmative action.

U.T. Austin admits 75 percent of the freshman class based on what’s called the Top 10 Percent Plan, which gives seats to students from Texas who graduate in the top 10 percent of their high schools. (California and Florida, which have banned race-conscious admissions, use top-percent plans for their public universities, too.) The courts call this approach to admissions “race neutral,” even though it depends on residential and school segregation to achieve a racially diverse student body. In Texas, more than half of Hispanic students and 40 percent of black students attend a school where minority enrollment is 90 percent or higher, according to the latest opinionof the appeals court in this case, and at those schools, they will be in the top 10 percent of their classes.

U.T. Austin awards the remaining 25 percent of spots based on what it calls “holistic” admissions. The officials making the calls look at academic achievements, like grades and test scores, and also personal factors, like essays, leadership qualities, extracurricular activities, work experience, community service, socioeconomic status, family composition and, yes, race. Including race on the list doesn’t appear to put a heavy thumb on the scale for black and Hispanic students. They are actually underrepresented in the holistic part of the admissions process: White students are disproportionately more likely to get in through this door. Over all, U.T. Austin’s entering class in 2008, the year Abigail Fisher was denied admission, was less than 6 percent black and about 20 percent Hispanic. These numbers are also disproportionately white, compared with the state’s population, which in 2010 was about 12 percent black and about 38 percent Hispanic.

O.K., enough statistics. Abigail Fisher says that U.T. Austin violated her constitutional rights. Whenever the government takes race into account in choosing some people over others, courts treat the distinctions as suspect, in light of the 14th Amendment’s guarantee of equal protection under the law. Courts approve race-conscious government programs only if they are narrowly tailored to further a compelling government interest. (That’s the standard called strict scrutiny.) The 14th Amendment was adopted in 1868, after slavery ended, when Congress was concerned about protecting the rights of black people. According to the Supreme Court’s interpretation of equal protection, however, a government program designed to help African-Americans, or another racial minority, is just as suspect as one that’s designed to harm them.

I’d call admissions at the University of Texas, Austin, in which race is one of many factors for choosing 25 percent of the students, affirmative action lite. It’s also mini: In 2008, out of a class of more than 6,300, only 216 African-American and Hispanic students got in through holistic admissions, which is just 33 more than got in this way before race was considered, according to the university’s brief. If what U.T. Austin is doing isn’t constitutional, realistically speaking, it’s hard to see what racial preference could be.

The deciding justice in this case is almost certainly Justice Anthony M. Kennedy. He wrote the opinion the first time Fisher came before the court, in 2013, and his views of affirmative action have straddled a kind of middle ground. Over the years, Kennedy has disliked just about every race-conscious government program to come before him, but he has never ruled to end these race-conscious efforts altogether. He has left schools to chase a hypothetical affirmative-action holy grail. So the question in Fisher: The Sequel is whether Kennedy will limit himself to ruling on admissions at U.T. Austin, or whether he’ll go big and shut the door on race-conscious admissions at public universities once and for all. (Justice Elena Kagan did not take part in Fisher the first time around, and she’s sitting the case out this time, too, probably because she worked on matters related to it when she was solicitor general.)

Which way do you think Kennedy will go? I’m betting small. I think he may be haunted, just a bit, by the Ghost of Christmas Past, played by Justice Sandra Day O’Connor. In 2003, O’Connor wrote an important opinionallowing affirmative action to continue at the University of Michigan’s law school, because the admissions process wasn’t based on a quota. O’Connor gave affirmative action a time limit. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote. We’re almost halfway there. And we live in a country in which black and Hispanic students suffer from lower-quality education at highly segregated schools, and in which their families’ level of wealth is far below that of white and Asian families. Maybe Kennedy will let O’Connor’s clock keep running?

Emily

Emily,

That’s a good summary, one that shows that the Supreme Court’s approach in this area may be good policy but is jurisprudentially at war with itself. Start with strict scrutiny, the most demanding form of judicial review and one that is exceedingly difficult to meet. As you say, the court says strict scrutiny applies whenever the government sorts people by race, and there is no dispute that race-conscious admissions policies at public universities are just that kind of sorting.

But the only justification allowed by the court’s precedents for taking account of race in admissions decisions is “educational diversity,” which can seem like human-resource department jargon elevated to constitutional principle. It is divorced from the legacy of racism and Jim Crow. It is not an attempt to remedy past injustice. It is, rather, based on a gauzy idea that is very hard to test, to quantify, to strictly scrutinize: that people learn better in an environment in which there is a “critical mass” of students who would otherwise be underrepresented.

The diversity justification allows admissions departments to put a thumb on the scale to increase the representation of some minority students whose academic credentials would otherwise be insufficient. That means campuses look more like America, foster the next generation of leaders and role models and may well create richer classroom and dorm-room discussions. Another important plus: Such holistic admissions, unlike quotas, make it very hard to know which white and Asian students would have gotten in but for the preferences.

For legal purposes, though, the justification has a powerful vice. Its opacity exists uneasily in a legal system that aspires to analytical rigor policed by strict scrutiny. How are courts meant to decide whether and how much otherwise-forbidden racial classifications should be permitted in pursuit of something as vague as educational diversity?

Kennedy, for his part, is of two minds on the question. On the one hand, he knows that the legacy of racial injustice persists. “Much progress remains to be made in our nation’s continuing struggle against racial isolation,” he wrote for the majority in June in a fair-housing case, joining the court’s four-member liberal wing.

On the other hand, he has never voted to uphold an affirmative-action plan, and he dissented in the 2003 Michigan case you mention, Grutter v. Bollinger.

But Kennedy has a way to reconcile his clashing impulses. He could use strict scrutiny rigorously in order to encourage public universities to use alternatives. “Were the courts to apply a searching standard to race-based admissions schemes,” he wrote in 2003, “that would force educational institutions to seriously explore race-neutral alternatives.”

The Top 10 program would seem to be just such an alternative, and there is every reason to think Kennedy thinks it is swell. But note that the Top 10 program is itself a sort of obfuscation, as it was plainly designed to achieve greater representation of blacks and Hispanics, and it is a much blunter instrument than holistic admissions. “Only an ostrich could regard the supposedly neutral alternatives as race unconscious,” Justice Ruth Bader Ginsburg wrote in dissent in the first Fisher decision.

That means, argues Brian T. Fitzpatrick, a law professor at Vanderbilt, that the Top 10 program is itself constitutionally questionable. “The 10 Percent Plan was motivated by the desire to replicate the discrimination against whites and Asians that had been achieved using explicit racial preferences,” he writes in a new article. “If a law is motivated by racial discrimination and has the effect of racial discrimination, isn’t the law racial discrimination?”

Now, to answer your question: The available evidence suggests that Kennedy will vote to strike down the race-conscious part of the Texas plan, reasoning that it is not justified because the Top 10 program is working to produce substantial racial diversity. He might respond to your point that the effects of holistic admissions on minority representation are “lite” and “mini” by saying that we should be especially wary of possible constitutional violations that lack significant corresponding benefits.

Striking down the Texas system would be a major ruling, but if that is all the Fisher sequel does, its effect would be limited. That is because the Texas plan is idiosyncratic: No other state uses such a hybrid approach.

On the other hand, it would not take much effort to write a broader decision, one that would matter nationwide. Such a decision, echoing Kennedy’s 2003 dissent, would require exploration of race-neutral mechanisms before race-conscious ones are permitted. That would open a new chapter in the legal history of race and education long before O’Connor’s 25-year prediction.

I’d be interested in your take on how to make sense of the court’s narrow and not always coherent vision of the role race may play in admissions decisions.

Adam

Adam,

The court’s narrow and not always coherent vision of the role race may play in admissions has become, I think, a legal straitjacket. It leaves some judges straining to fit benefits that are hard to measure within the four walls of the diversity box, while others dismiss the whole project as misguided. This doesn’t come directly from the Constitution. In 1978, when the justices splintered over the rationale for striking down affirmative action at the medical school of the University of California, Davis, educational diversity was the single permissible reason for affirmative action left standing. Since then, universities have been unable to legally justify racial preferences in the name of remedying the social ills caused by past or present discrimination. They can’t try to make up for the inequities of American K-12 education, or segregation, in its many forms.

In 2003, O’Connor created another problem when she said that the benefits of diversity come from enrolling a “critical mass” of underrepresented minority students, as you mentioned, because when a school achieves that, “racial stereotypes lose their force.” This, too, has turned into a linguistic and conceptual cul-de-sac. “Critical mass” is a term that begs to be quantified. But any school that hung a number would be nailed for having a quota. Three years ago, during the oral argument in the first round of Fisher, the court’s conservative justices made mincemeat of critical mass. “The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is,” Chief Justice John G. Roberts Jr. said. “Do you have a critical mass of Filipino Americans?” Justice Samuel A. Alito Jr. asked. “Cambodian Americans?”

Afterward, the court ruled 7 to 1 in favor of sending the case back to the appeals court for “more exacting” scrutiny of U.T. Austin’s admissions program. The appeals court ruled, 2 to 1, in favor of letting U.T. keep the Top 10 Percent Plan with holistic admissions. Fisher asked the Supreme Court to step in again, and that’s where we will be when the lawyers approach the bench on Wednesday.

One bit jumped out at me from U.T. Austin’s brief: The university points out that the Texas Legislature approved the consideration of race in admissions in 2009, aiming to ensure that its universities have “the flexibility they need to carry out their educational mission and maintain a more well rounded student body,” as an analysis of the bill put it. Why is it the court’s job to second-guess the university and the state’s elected officials? Courts sometimes take on the job of defending the rights of individuals, or of minority groups, out of concern that the majority is trampling them. It’s hard to make that case about white students in Texas, a red state where whites are the largest group in most voting districts. Should the Supreme Court worry that white college applicants aren’t getting a fair shake?

There’s another way to think about this, I realize: If the court strikes down U.T. Austin’s current admissions process, the university and the Legislature’s commitment to admitting black and Hispanic students could continue, in another form. Affirmative action based on class rather than race doesn’t raise the same constitutional flags. It would not give a “leg up,” as Alito put it at the last oral argument, to a wealthy black student over a poorer white or Asian student. Low-income students, of all races, are undeniably underrepresented at selective universities. Most of the high performers among them don’t even apply. A push has begun to change that. The question, as David Leonhardt noted last year, is how colleges and universities will respond.

Class-based affirmative action, however, can reduce the enrollment of black and Hispanic students, as Nikole Hannah-Jones has explained. There are many more low-income white applicants than poor low-income applicants of color, and so if schools focus on income, their numbers simply swamp the numbers of poor minority kids. If you think being poor is the primary burden students carry, you may be O.K. with that result. But if you think racial discrimination causes its own persistent damage, separate and apart from how much money a person has, then class-based affirmative action looks incomplete.

But it also may be possible for schools to be more creative about how they factor in socioeconomics, and to come up with strategies that aren’t purely income-driven (like the top-percent plans), and increase minority enrollments without being explicit about it. Last year, three researchers at Georgetown University (Anthony Carnevale, Stephen Rose and Jeff Strohl)ran a series of simulations, modeling different class-based preferences for admissions to the country’s top-rated 193 colleges and universities. Some of the simulations included factors like neighborhood education level and school-poverty concentration as well as family income. The models imagine a real departure from the current admissions process at most of these schools (for example, no more preferences for the children of alumni, and a lot fewer spots going to wealthy kids). And a few of the simulations succeeded in maintaining or increasing Hispanic and black enrollment.

An amicus brief by Richard Kahlenberg of the Century Foundation, a longtime advocate of socioeconomic integration, reports on the admission strategies of 10 schools in states that banned racial preferences at public universities, and finds that seven of them met or exceeded the level of racial diversity they had before. Could someone sue over one of these socioeconomic integration plans, on the grounds that they’re adjusting for race by proxy? Sure — but it would be a harder case to win, because disadvantaged kids of all races still benefit.

If “race neutral” admissions could achieve racial diversity, and benefit poor white students, too, would this be a win-win — constitutional and less socially divisive? Or is that wishful thinking?

Emily

Emily,

The University of Texas’ lead lawyer is Gregory G. Garre, who served as solicitor general in the George W. Bush administration and is a leading member of the elite Supreme Court bar. The last time around, I thought a passage in his brief had been a misstep. He said the race-conscious part of the Texas plan was needed to produce “diversity within diversity,” and he gave an example.

“The African-American or Hispanic child of successful professionals in Dallas who has strong SAT scores and has demonstrated leadership ability in extracurricular activities but falls in the second decile of his or her high-school class (or attends an elite private school that does not rank) cannot be admitted under the Top 10 Percent law,” Garre wrote. “Petitioner’s position would forbid U.T. from considering such a student’s race in holistic review as well, even though the admission of such a student could help dispel stereotypical assumptions (which actually may be reinforced by the Top 10 Percent plan) by increasing diversity within diversity.”

I used to refer to this as the diversity-for-dentists’-kids passage. It gave rise to withering criticism from the bench.

“I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Alito said in 2012.

In his brief the second time around, Garre did an effective job in responding to that critique and in persuading me that my own reaction had been too simple-minded.

The Supreme Court’s precedents have stressed that numbers alone cannot be the goal. Yet defenders of the Top 10 plan as a complete solution rely awfully heavily on racial math to show that it is working. The percentages of black and Hispanic students are tolerably high, they say. Game over.

But if you accept the diversity rationale, the game is just beginning. If the point is to create the vibrant discussion said to emerge from conversations among students of all sorts of backgrounds, admissions officials may well need leeway beyond accepting every student who meets an arbitrary academic cutoff.

As for whether some kind of race-neutral admissions scheme could provide a complete solution, the evidence is mixed. Though colleges and universities don’t like to talk about it, most race-neutral approaches are expensive. More students who are poor, for instance, means more scholarships.

The recent college protests you discussed at the beginning of our exchange may suggest a response to that objection. They show that we may be at the start of a new civil rights movement, one with vast political power. Should the Supreme Court rule that colleges and universities must use race-neutral tools to ensure that their campuses include a real mix of students of many races and ethnicities, at least there is reason to think they will be forced to find the money to pay for those tools.

Adam