Earlier this week, we brought you some insights from "Campus Colors," a panel presented at this year's ABA Annual Meeting on Fisher v. University of Texas. The panel, consisting of Patricia Olendorf, Vice President of Legal Affairs for the University of Texas at Austin; Damon Hewitt of the NAACP Legal Defense Fund; and long-time civil rights lawyer Bill Lann Lee of Lewis Feinberg, provided a unique mix of experience and insider observations on the case.
Today, we continue with a look at the strict scrutiny at issue in the case, as well as some interesting insights on the growing role of amicus briefs in affirmative action cases.
A Compelling Interest
We often hear that a university has a compelling interest in diversity. In generic terms, that may sound to some as a nice, yet unconvincing assertion. Are a few more minority viewpoints worth the questions that arise when some students are admitted over other, arguably better qualified applicants?
This is where Olendorf's viewpoint was exceptionally informative. She described the university's long history with race and admissions, from the university's first admittance of an African American in 1950 to Hopwood v. Texas, which temporarily banned affirmative action in that circuit. After that decision, the numbers of minority students plummeted. Though 13 percent of the state's population was black, black students only made up 4 percent of the college's student body.
In a study conducted by the university, black or Hispanic students would amount to only one (or none) per small (24 students or less) discussion-based classes.
After the present-day program was implemented, 20 percent of black students and 15 percent of Hispanic students were admitted through the university's "holistic" review, which considers not only race but six other factors, including personal leadership experience and socioeconomic factors, in making the determination.
The biggest question to emerge from the Fisher fizzle was what amounts to "workable race-neutral alternatives." This standard first popped up in Parents Involved, and was again cited by Kennedy in the majority opinion here.
In order for a university's policy to be narrowly tailored, there must be "a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications," and "[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." A race-neutral alternative must be used if it "'could promote the substantial interest about as well and at tolerable administrative expense.'"
"Tolerable administrative expense" and "workable race-neutral alternatives" are vague standards that must be hashed out in future cases and on remand.
The Role of Amicus
A great point, brought up by Lee, was the evolving role of amicus curiae briefs in affirmative action cases. Lee blames the Court itself, as once Justice Powell, in Bakke, cited, quoted, and praised Harvard College's amicus brief and their holistic admissions policy, the amicus floodgates opened. O'Connor continued the practice, citing amicus briefs from major American businesses, as well as leaders of the military, in Grutter. In Kennedy's dissent in that case, he cited the Little Ivy League Colleges' amicus brief.
In Fisher, the amicus briefs opposed to UT, and affirmative action generally, made arguments that the practice was bad for minority students. They argued that minority admittees chose easier non-science majors and performed more poorly in their classes. These briefs, and arguments, were cited by Justice Thomas in his lengthy anti-Grutter concurrence.
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