Fisher Blog: Why Justice Alito’s dissent in Fisher v. The University of Texas is so important. (Hint: it’s about the argument weaknesses that it exposes, on both sides!) Part II

This year’s decision is a return performance of litigation that went to the Court in 2013. The Court remanded the case for more explanation of UT’s reasons for the two tiered diversity plan and a demonstration of whether it was narrowly tailored to reach the goals that it had set for diversity. I am posting a two part blog this time. In Part I, I discussed the Alito dissent’s main argument critiquing the majority decision in favor of the University of Texas admissions program and how Justice Alito’s demand that UT explain its diversity goals with precision would eventually force UT to name a number, which would make the program a quota, which is unconstitutional.

I post this second installment on the occasion of my high school mass reunion which I attended last weekend (Hebert High School Beaumont Texas 1922-1982). I have included my high school in this essay because I am writing about the dissent, and so much in Alito’s dissent is about my high school, and high schools like it, its legacy, what people think its legacy is, and hypocrisies on both sides.

From part I:

The decision is now history. Texas has a rather convoluted history with academic affirmative action, with its modern beginnings in the 5th Circuit opinion of Hopwood v. Texas, on to a double tiered diversity admissions process, with one using race, as allowed by the Supreme Court, and another process utilizing the fact that Texas high schools, like most states with large urban areas (certainly New York, California, Florida, and Illinois meet this description), the high schools are racially identifiable. By taking the top ten percent of the graduating classes from all high schools, you guarantee some diversity.

The Supreme Court decided that the University of Texas had established compelling reasons for using race along with the top ten percent plan in putting together its entering classes, and that the methodology was narrowly tailored to achieve the levels of academic diversity needed for the school’s educational mission.


Inner City Blues

UT’s argued that it needed to employ both admissions methods because the top ten percent plan did not do enough to establish a critical mass of underrepresented minority students across the majors and courses offered by the University. But then there is question of what critical mass is, and the method of reaching that critical mass at UT that Justice Alito focuses on and his critique of the method that is worth at least a sympathetic look by this progressive.

Back to my class reunion in Beaumont, Texas. Twenty years ago I wrote a law review article titled "Hebert High School and the Brown Aftermath: Good Intentions and Troubled Policy", 21 T. Marshall L. Rev. 45 (1996). The article describes in much more detail what I will attempt to describe in the next few paragraphs.

In the piece I critiqued school desegregation policy during the late 60s, 70,s and 80s. I attended Hebert in the 1960s and 70s and was aware of the desegregation movement and the policy employed to improve the educational opportunities of children of color under the rubric of the Brown decision. I understood the implications of the policy of integration at all costs, and I did not like it. I was one of those children of color whose educational opportunities were in need of improving because I and my classmates with whom I hung out this weekend were enrolled at an inner city black high school. In my view the term inner city black high school has become an epithet meaning substandard and underachieving, violent, and generally distasteful. It is an unfair characterization but one that seems to stick since it became a part of the vocabulary of school desegregation policy in the 60s and 70s.

Our reunion this week is what is called a mass reunion, where the survivors of the earliest classes able to attend (in our case this year, a 98 year old graduate of the class of ’34) celebrate our legacy with the alumni of the last classes in our school’s history. Our school, which opened in 1922, was closed in 1982 for the purposes of desegregation, an interesting term to describe a closure that occurred 28 years after school segregation under the mandate state law had been outlawed by the Supreme Court. So it is fair to say that at least those of us who attended Hebert after 1965, when the Brown decision was finally implemented in Beaumont made the choice out of our own free will, and not under a legal mandate.

I have worked in education, at least at the professional school level for about 26 years now, and I have thought about these issues since I was in high school. In many ways our school was a typical single race minority school of its time, and in many ways, it was different. Though I have not done a scientific study to tie these assertions down, I do believe that the achievement levels that we have attained are not what one thinks of when one thinks of inner city schools. And yes, our school was underfunded by racist’s allocation policies implemented by what was then a racist majority white school board. But there were the intangibles, the quality of teaching, the spirit, the notion of community that made our school great. The individual achievements of my fellow “Panthers” are nothing short of amazing. Hell, I am talking about it 43 years after graduation. And what examiners not familiar with the minority schools of that era will find upon embarking on serious research into those institutions is that our kind of “amazing” existed at minority schools across the nation. Perhaps many, if not every major or midsized city could claim an exceptional black or Hispanic school. We had excellent and well credentialed teachers, a tradition of academic excellence, and a school spirit that made us want to achieve. All we needed was a little more money. But that was impossible as long as the white high schools in the district were getting more than their share of tax dollars for their facilities. I believe to this day that a litigation strategy focused on resource allocation equality, under Equal Protection precedent, would have produced far better results for schools today than the “integrate at all cost” policies that were employed that turned out failed outcomes. This is because the institutions pursuing the implementation of Brown decided early on that any majority minority school was, by virtue of this racial characteristic alone, a violation of Brown, a decision dealing with state mandated segregation. So a strategy of eliminating majority minority schools was pursued instead of ensuring that all schools had adequate funding for academic programs. In Houston, this resulted in the recently renamed Jefferson Davis and Robert E. Lee high schools being majority minority as minority students were zoned to these schools, leading to the predictable mass exodus of white students. Professor Derrick Bell called for a reexamination of this strategy in his groundbreaking 1976 article "Serving two Masters: Integration Ideals and Client Interests in School Desegregation Litigation":


The espousal of educational improvement as the appropriate goal of school desegregation efforts is out of phase with the current state of the law. Largely through the efforts of civil rights lawyers, most courts have come to construe Brown v. Board of Education as mandating “equal educational opportunities” through school desegregation plans aimed at achieving racial balance, whether or not those plans will improve the education received by the children affected.


Bell went on to explain in a later article his interest convergence theory. Ending state mandated segregation may have served the purposes of white elites and others separated from black student populations in 1954, but by the time school desegregation came to mean massive bussing to achieve racial balance, most of those whites had decided that their interest were not served and sought more separation from black student populations through white flight. None of this contributed to quality black education. Likely, an opportunity for quality black and minority education had been squandered because of the strategy of desegregation of that time.


Bad Words

The big issue in Fisher is the fact that UT undergraduate admissions operated under what is the Top Ten Percent plan. In its original form, students graduating in the top ten percent of their high school’s class are offered admissions to UT Austin. It is a color blind plan on its face created in response to a woefully incompetently written opinion by the 5th Circuit in the 1996 Hopwood v. Texas case which ruled that the University of Texas School of Law’s admissions policies violated the Equal Protection Clause because of the law school's use of race as a factor in admissions decisions, a decision effectively overruling the Supreme Court’s Bakke decision—something lower courts are not supposed to do. Though not a national decision, it would be the law in Texas and a few other states in the 5th Circuit for the next several years. The Texas Legislature responded to the ruling by enacting the Top Ten Percent plan for undergraduate students (though no alternative for graduate or professional programs in the state was offered). In order for diversity to work, the plan relied on the one race nature of a significant number of Texas high schools (some would say segregated, though, as I have explained, I believe the term in this context is legally imprecise). These schools are either what I’ll call HMHS (historically minority high schools), newly created neighborhood minority schools, or formerly white schools (like Davis and Lee) that became minority over time due to white flight. They exists as a result of several factors including white flight, and decisions by federal courts, including the Supreme Court, releasing school districts from federal court desegregation orders where re-segregation occurred as a result in neighborhood changes.

After Grutter v. Bollinger made clear that the diversity standard for the use of race as a factor remained constitutional, UT returned to using race as a factor, while maintaining the ten percent policy. This meant that UT had two plans in place to reach its preferred diversity goals.

Justice Alito is correct to criticize UT’s reasons behind its use of race, though it would be nice to see this passion from the good justice in other areas addressing social and economic racism in his jurisprudence. UT had a course coverage problem under the ten percent plan (not enough underrepresented minority students enrolled in the full selection of courses and majors at one of the nation’s best public schools), and it said it had an academic quality problem under that plan as well. Alito characterized UT’s argument as arguing that the minority students drawn from the ten percent plan “tend to come from poor, disadvantaged families, and the University would prefer a system that gives it substantial leeway to seek broad diversity within groups of underrepresented minorities”. According to UT’s brief in the first Fisher case, UT needed intra-racial diversity that would include the “African-American or Hispanic child of successful professionals in Dallas”. In the first trial in the first case, the transcript has UT representatives testifying that “although the percentage plan certainly helps with minority admissions, by and large, the—minorities who are admitted tend to come from segregated, racially-identifiable schools.”

The real problem at the University of Texas is simply the paltry numbers of underrepresented minorities in a school of over 50,000 students. The most readily available enrollment data from UT’s website (at least what I could find) is from 1984, 7 years after I arrived for law school and 4 years after I graduated. Out of a total enrollment of 47,973, the black enrollment figures were 1582, or 3.29% (graduate and undergraduate combined). Current statistics have black enrollment at just under 3.9% (graduate and undergraduate combined). That’s about 1987 black students, .671 percentage points from where it was almost 40 years ago. As it seeks to remedy that circumstance, one gets the impression that it chose to focus on the need to diversify certain majors and classes that were undersubscribed by underrepresented minorities, and on beefing up the admissions credentials of those groups. To do so, it represented its method as going after intra-racial diversity, and in doing that, it used language, at least in the first case, that disparaged students from “racially identifiable” schools.

This is a hard call on the part of the University. It needed to provide a reason for using race on top of the ten percent policy, and it picked its language from the old vocabulary of the school desegregation movement—racially identifiable, read racially identifiable minority schools, means less capable students, means, more capable students are from schools that were not racially identifiable minority schools (whether or not those schools were racially identifiable white schools). Reading the University’s use of language reminded me of a comment made to me by a black friend who was a colleague of mine in a city wide black youth organization who attended a racially identifiable white school. Our youth group, Top Teens of Beaumont, gave out awards to members whose class rank was at the top of their respective schools. I got my award as did other kids from majority black schools. My friend who attended a “white” school suggested that the awards should have been more evenly distributed among students attending white schools (something to the effect, “I should have gotten one of those awards even if I did not finish in the top percentile at my school—it was a white school after all.” Seriously, he said that.)

I am pretty sure that everybody at my reunion has been disparaged at some point in our high school and post high school lives (before we could establish ourselves in true adulthood) in some way because of the racial identity of Hebert High School. This list of alums include an alum who is a retired Yale trained mathematician, political leaders, Harvard and UT trained medical doctors and medical school professors, and other medical professionals, a retired Naval Academy graduate fighter pilot, high ranking officers of the United States Military, school teachers, hard working blue collar employees, lawyers, college professors, skilled workers and supervisors in the local industries, excellent parents, tax paying citizens, at least one FBI agent, plant and corporate managers, and at least one UT Law trained law professor as far as I know. The list could continue.

And the University of Texas did not have to make that argument. In its brief in the first case, UT noted the limitations of the top ten percent plan because “even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university” quoting the Grutter majority opinion. This means that what UT calls its holistic admissions approach, it could consider the race of a black math genius who did not make it to the top decile, or an Hispanic cellist who excels in the high school orchestra but did not finish in the top ten percent. Or that it could supplement its top ten diversity with high achieving minority applicants who may not have made it in under the top ten plan.

However, in support of this in the first case, UT went into that old territory of language designed for the function of “salvation” from racially identifiable minority schools. In describing the urban educational realities of modern day America UT argued in its 2012 brief:


[t]hat segregation produces clusters of overwhelmingly majority-minority schools—largely confined to particular geographic areas of the State—that tend to produce large numbers of minority admits under the top 10% law. But that clustering also means that the top 10% law systematically hinders UT’s efforts to assemble a class that is broadly diverse, and academically excellent, across the board—including within groups of underrepresented minorities.


Let’s be honest here. Like I mentioned earlier, UT’s black numbers are roughly what they were when I showed up there in a large Afro and jeans with holes in them 39 years ago. So in two generations, with all of UT’s resources and with the state literally leaking black academic talent like a sieve to out of state private and state schools, UT has not significantly increased its black enrollment numbers. But UT’s defense of its affirmative action program in the first case was in essence that it cannot produce an academically excellent program while taking in all those minority top percentage students. The fact of the matter is that it has blown the last 40 years, most of which under Bakke’s “ race as a consideration” affirmative action admission standard, by failing to solve the problem.

Considering the spate of litigation this term involving the state of Texas, the UT people were motivated by far kinder instincts than were behind either the abortion or immigration cases from the Great State heard by SCOTUS this term where the state government was a litigant. But this is UT, where perhaps more enlightened voices prevail, and the Office of the Attorney General is not involved in this litigation, and taking up this challenge is to the credit of UT’s administration, Board of Regents and legal team. However, UT’s position in 2012 was not complimentary. If you measure quality by where a student is at a given moment (like right out of one of these inner city schools) the characterization is very likely true because the difference between the academic facilities for learning at some schools and others is too often huge, and not one of the students in either type of school had anything to do with where they wound up. But one has to consider effort, desire, and intangibles that the Texas state legislature, in one of its occasional decent legislative moments, deemed important for its flagship university to embrace.

Nonetheless, that math genius that I mentioned earlier, may not make it to the top ten percent at a highly competitive high school, but UT wants that student and it wants an affirmative action plan that allows them to offer admission to that kid. Why? “Because that kid is smart and we have a compelling interest in admitting the smartest students we can under Grutter”. But instead, UT’s argument in the 2012 brief was that it needs the math nerd “because the inner city kids are not very good.”

Alito is clever and seizes on that use of language to write like a racially sensitive liberal:


“[u]ltimately, UT’s intraracial diversity rationale relies on the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are “from the lower-performing, racially identifiable schools.”


Justice Alito also noted:


And UT’s assumptions appear to be based on the pernicious stereotype that the African-Americans and Hispanics admitted through the Top Ten Percent Plan only got in because they did not have to compete against very many whites and Asian-Americans.


But the progressive world shuddered when the late Justice Scalia said during oral argument in Fisher last December, “[t]here are – there are those who contend that it does not benefit African Americans to --to get them into the University of Texas where they do not do well, as opposed to having them go to a less--advanced school, a less – a slower-track school where they do well.” This statement was met with outrage, but when compared with UT’s own arguments from the first case, it’s hard to argue that the two statements together are terribly different and hard not to argue that they both amount to an unfortunate description of black and other underrepresented minority students.

And the arguments were not necessary, as UT recognized in its brief for the second case.

UT’s earlier argument, largely walked back and or abandoned in 2015-16, under-appreciates the hard work that people put into making these inner city school’s work. These schools are populated by students who had nothing to do with their educational circumstances but who will be looked at funny by fellow students, instructors, and apparently by admissions officers when they go to college. I know because people looked at us funny when affirmative action was just beginning in the 70s. This kind of vision of top students from the inner city is not comfortable—it’s stifling, it sucks, and it is counterproductive, fully capable of producing the very results predicted, possibly in large part because of the pressure placed on these kids, and on us when we were young.

Like I said, UT walked that argument back this year with much more ameliorative language while discussing the influential Harvard University diversity admissions plan:


To illustrate how the “critical criteria” in achieving the educational benefits of diversity “are often individual qualities or experience not dependent upon race but sometimes associated with it,” the Harvard plan gave the example of two different African-American applicants—“A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semiliterate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power.” The plan recognized that each of these applicants would add to student body diversity in their own unique ways, and that the university’s diversity interest would be furthered by both.


Though this new language speaks to a more holistic view of being a minority kid seeking an education in this country, it still relies on the assumption that the inner city kid as a remedial project. The new brief does not consider the kid from one of those exceptional minority schools that I have been describing that defies all expectations by scoring higher than she should and performing at a level not expected because she attended a racially identifiable minority school, maybe like the kids to whom I give scholarship money in honor of my parents, educators in those inner city schools of Beaumont Texas. Or maybe like me, an affirmative action student at Rice, but a normal admit if I had chosen UT 43 years ago out of my inner city high school.

What UT has apparently learned since the first case is that positive descriptions of students that it professes to want to admit is crucial to a good admissions policy because it needs to send the message that the students are really wanted. It needs to act and speak in a positive manner so that its minority admissions numbers over the next two generations will actually rise and not stay stagnant. I hope that it has also learned that the imprecise use of language having to do with a previous generation’s desegregation battles should not color racial admissions policy at one of the nation’s largest and best public schools. What I also hope it learned is about the hard work of students, teachers, and administrators in places like the old Hebert, and similar present day schools—hard work that does not always show up well in raw statistics and data generated from the most general of cumulative samples of schools of a particular category.

Ok, we’ve gotten the decision we wanted. Now it is time to go to work at the Forty Acres.

Hook ‘Em Horns!




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