Craig L. Jackson, Professor of Law Thurgood Marshall School of Law, Texas Southern University
I have begun writing this after mulling over this idea all week since the decision came on in late June. Today, I am gathering my thoughts after re-reading the dissent and starting my introduction. In a few minutes I will shower, shave, and hit the road to Beaumont, Texas to my high school mass reunion (Hebert High School 1922-1982). I include this itinerary because I am writing about the dissent, and so much in Alito’s dissent is about my high school, its legacy, what people think its legacy is, and hypocrisies on both sides.
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.
I am writing a two part blog today. In Part II I critique language used by UT in its 2012 brief about the quality of minority students from minority schools, the top ten percenters. As I demonstrate upon posting, it is language that should never have been used to describe these kids (or me as I was one of those kids once) but unfortunately it is language that has been staple in the old desegregation litigation and activism of a previous generation.
In this first instalment of the "Fisher Blog" I write about the Alito dissent because we are going to hear about this dissent for years to come. This term saw two big culture war cases before the Court. In addition to this case, there is Whole Women’s Health v. Hellerstedt the abortion rights decision. The cases were decided after the death of Justice Antonin Scalia. Though neither of the vote tallies indicate that a Scalia vote would have changed the outcome (Fisher, 4-3 (Kagan abstaining)--a Scalia vote would have tied the outcome resulting in an affirmance of the pro UT ruling in the 5th Circuit); Whole Women’s Health, 5-3), Alito’s dissent amounts to about as spirited a critique of the pro affirmative action opinion as one will get post Scalia and his points will be discussed for years.
The Alito Dissent
Like most dissents on either side of the ideological divide, Alito’s includes the requisite recriminations about the motives of the majority, accusations of lack of candor on the part of the Court’s opinion, insinuations about the competence of the majority—though absent here are attacks on the personal character of the majority, a regular feature of dissents of the late Antonin Scalia. In a fashion not atypical of a dissent, he identifies and explains what it considers evidentiary fallacies in UT’s compelling interest claim, though in a case involving a plaintiff whose standing remains in question to this day either because of the lack of harm suffered—she graduated from Louisiana State University, or the lack of a valid claim of causation—her indices were too low to get into UT in 2008 when she applied regardless of her race, both largely ignored in the litigation and in Alito’s dissent, complaining about evidentiary fallacies takes a lot of gall. And to Alito, clarity means possibly a quantification of what the University means by critical mass. However, quantification in affirmative action has been verboten since 1978’s Bakke decision where quotas were ruled unconstitutional. In an alternate universe where UT actually makes that argument and supplies the quantification that the Alito in our universe craves, the alternate universe Alito yells “quota” and plays the game of “Gotcha”! So, it seems that Alito would cast the University of Texas in the role of Yossarian, the anti-hero in Joseph Heller’s Catch-22.
In Heller’s classic, Yossarian, a US Army Air Corp pilot, needs a certain number of bombing runs over German held territory to be reassigned during World War II, a standard practice in the Corp to avoid burnout. But as it turns out, the more successful number of sorties run, the more valuable Yossarian and his co-harts became and the promise of reassignment was extended such that it became elusive. Alito dangles the promise of acceptability under the Equal Protection Clause if the University will only provide a number. However, once a number is attached to a critical mass goal, it becomes a quota, and unconstitutional. The Court, before Alito was appointed to the body, understood this and instead of dangling Catch-22 promises, debated the wisdom of affirmative action outright in 2003’s Grutter v. Bollinger. There, the majority understood its limitations as judges, and not educators, and deferred to the educators’ expertise on what critical mass meant in the context of the University of Michigan School of Law.
The Court, by contrast found the same school’s undergraduate program unconstitutional in Gratz v. Bollinger. The Grutter dissents included passionate pleas to overrule the diversity rationale of Bakke, and Justice Thomas quoted Frederick Douglas, no doubt to establish the abolitionist as a traditional opponent of modern day affirmative action (Freedman’s Bureau notwithstanding). The difference between Gratz and Grutter was based on conclusions that the majority in each made in their roles as lawyer/judges. They applied a fairly objective rule, against quotas, and examined whether the programs in the two Michigan programs, amounted to one. As diversity had already been established as a compelling educational interest in Regents of the University of California v. Bakke, the majorities in the two cases did not seek to re-litigate that issue, and instead determined that the law school’s efforts at diversity were not quotas, and the undergraduate admissions program was. No second guessing academic experts in the fashion of Justice Alito 13 years later. Just straight up lawyering by judges, which is what judges are supposed to do, at least according to the standard conservative judicial harangue over the last couple of generations.
What’s at least as troubling is the fact that the Catch-22 is really more than just that—it is a lure into a trap. The opprobrium that would fall on any state school coming close to the banned quota practice would be overwhelming, not to mention the fact that it is an automatic poison pill, as the undergraduate program at the University of Michigan found out in Gratz. Alito’s obsession with scrutinizing decisions of which he has little expertise (higher education), and presumably the obsession of Justice Thomas and Chief Justice Roberts as well, is the open door setting up the trap. The point is that the diversity rationale is rooted in First Amendment jurisprudence protecting academic freedom. As Justice Powell put it in the Bakke decision: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
I do not read Powell’s language as giving universities a blank check to administer the Equal Protection Clause independent of judicial scrutiny. In other words, I do not understand the standard to be complete deference. But some deference is required, it would seem, if Powell’s words have any meaning. To require a specific enumeration of the parameters of the school’s interest in this case beyond a critical mass, with reasonable numbers across the board in a variety of courses offered by the University of Texas is to invite the school to a trap. It is a trap decorated with a reasoning that defies Alito’s own aversion to what he calls stereotyping when he suggests that one reason for the lack of minority presence in a number of majors and courses is that there might be courses that are more attractive for minority students than others.
What?
Whether the University of Texas, and the Fifth Circuit, properly responded to the Court’s remand request after the first case, the fact is that a panel of the 5th Circuit, and five Supreme Court justices were satisfied that UT had tightened up its rationale and its description of critical mass satisfactorily.
And Justice Alito and the conservatives who agree with his dissent will continue to ask UT how much diversity is enough diversity-the trap question as if no one will notice.
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