There is a brutal irony in the fact that the potential legal grounding for the disassembling of affirmative action programs in our nation’s colleges lies in The 14th Amendment and in The Civil Rights Act of 1964, two pieces of legislation that have done more to advance the causes of equal rights for minorities in America than anything before or since. The 14th Amendment, which was created largely in response to the implementation of the grossly unjust Black Codes by ex-Confederate states during Reconstruction, contains an Equal Protection Clause that mandates that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,”1 explicitly forbidding individual states from unlawfully depriving any citizens of life, liberty or property. As anyone who has even a passing acquaintance with U.S. history can tell you, neither the spirit nor the letter of the law were adhered to over the next century or so. With the decision in Plessy v. Ferguson (1896), the Supreme Court effectively neutered whatever standing the 14th Amendment had by ruling that the enforced separation of the races,“neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment.”2
After the landmark ruling in Brown v. Board of Education (1954) and the substantial gains made by the civil rights movement over the ensuing decade, President Johnson made the passage of new equal rights legislation a priority of his administration, resulting in the Civil Rights Act of 1964. The stated purpose of the Title VI of the act, which we will be concerned with in this paper, was to ensure that no U.S. citizen be discriminated against, “on the ground of race, color, or national origin,”3 by any program that received Federal financial assistance. This act, along with the 14th Amendment, was instituted to address inherent racial, gendered and religious inequality in America by making it illegal to discriminate against any one group with regards to, among other things, hiring and school admissions practices. At around the same time, Presidents Kennedy and Johnson helped usher in the age of affirmative action, issuing executive orders designed to level the playing field for minorities who faced unfair hiring and admissions standards. As President Kennedy decreed in a 1961 Executive Order that first introduced the term into our national lexicon, government contractors, “will take affirmative action4 to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”5
It is safe to say that neither of these men, nor any of the civil rights champions of that era, ever believed that the legislation enacted to provide minorities with educational and occupational opportunities would be used against them by members of the dominant, white establishment to declare affirmative action unconstitutional. In the most recent case against the practice, Fisher v. Univ. of Tex. At Austin, in which plaintiffs Abigail Noel Fisher and Rachel Multer Micahelwicz filed suit against the University of Texas for the school’s explicit use of race in undergraduate admissions, seeking reconsideration of her application on race-neutral grounds and, “injunctive relief prohibiting Defendants from using race as a factor in undergraduate student admissions.”6 The United States District Court for the Western District of Texas heard the case in 2009 and decided that the university’s admission processes were legal, at which point the plaintiffs took the case to the case to the U.S. Court of Appeals for the 5th Circuit, where a 3 judge panel also ruled in favor of the University. Earlier in 2012, the Supreme Court agreed to hear the case and oral arguments were heard regarding the case this past October. One of the plaintiffs, Rachael Michaelwicz, withdrew herself from the case last year, leaving Ms. Fisher as the sole plaintiff. Only 8 of the 9 Supreme Court judges have heard the case as Justice Elena Kagan recused herself from the case due, most likely to her involvement in the case as Solicitor General.7
The upcoming ruling by the Supreme Court in Fisher v. Texas—likely in Spring or Summer 2013—will either affirm or strike down the court’s most recent ruling on affirmative action in the case of Grutter v. Bollinger Et Al, which was heard by the Supreme Court in 2003. The majority opinion, written by the now-retired Justice Sandra Day O’Connor, ruled in favor of the University of Michigan Law School and its president, Lee Bollinger, stating that nothing in the Equal Protection Clause of the 14th Amendment prohibited, “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”8 The majority opinion cited the enhancement of classroom discussion, fostering of civic engagement and the preparatory value of mirroring the diversity found in the workplace as some of the reasons why affirmative action was a compelling interest in higher education.
With that being said, Grutter v. Bollinger came with a number of caveats and limitations, the first of which being that any race-conscious admissions measures had to be limited in time and contain a foreseeable end point or sunset provision. The court was not acknowledging that affirmative action was appropriate in a vacuum, but only insofar as we lived in a society that required it to make access to higher education equal for all citizens regardless of race. In fact, Justice O’ Connor remarked that the court, “expect[s] that 25 years from now, the use of racial preference will no longer be necessary to further the interest approved today.”8 With nine years having passed since the Grutter decision, you would be hard pressed to find any minority rights advocates that would agree that minority admissions at U.S. universities were rising at a rate that would make affirmative action unnecessary by 2028.
Let’s use the University of Texas-Austin as an example. The school had a 2012 freshman class that was 46% white, 24% Hispanic, 18% Asian American, 4% African American and 4% multiracial, 4% foreign and 0.26% American Indian/Alaska Native 9. These numbers may seem to be remarkably diverse when taken at face value, but compare this to the demographic breakdown of the state of Texas—44.8% white, 38.1% Hispanic, 12.2% African American, 4% Asian American, 1.7% multiracial and 1% American Indian/Alaska Native10—and you can plainly see that the racial composition of the university is not reflective of the racial composition of the state. While the white student population at UT is strikingly similar to that of Texas as a whole, the university’s most recent freshman class represents less than 2/3 of the state’s hispanic population, less than 1/3 of the African American population and slightly more than ¼ of the lone star state’s American Indian and Alaskan Native residents. It should be noted as well that the University of Texas at Austin’s 2012 Freshman class has a percentage of Asian American students that is 4.5 times that of the group’s representation in the overall population of Texas. This leaves the Asian-American community in a unique and unenviable set of circumstances as they are still very much a minority in American society, while they have ceased to be a minority in the eyes of academia, where they are now overrepresented compared to the general population.11
While the University of Texas at Austin’s student body is not an accurate representation of the state of Texas as a whole, the question of whether or not it is sufficiently diverse is more a matter of personal opinion than empirical reality. In Regents of the University of California v. Bakke (1978), it was established in the majority opinion, written by Justice Lewis Powell, that universities could not employ a racial quota system or have a specific goal for minority enrollment, as that would involve refusing admission to other students based solely on their race. However, Justice Powell did not reject using race in the college admissions process outright, stipulating that race and ethnicity can be a factor in admitting students, so long as each applicant was evaluated individually, using a process that,”is flexible enough to consider all pertinent elements ofdiversity in light of the particular qualifications of each applicant.”12
Justice Powell’s rationale was sound insofar as universities should be forced to evaluate each applicant individually, using race/ethnicity as one part of a larger, holistic consideration of their application. The problem is that, in forbidding the use of quotas for racial groups in the admission process there is no objective way to establish when exactly a university has reached the tipping point where they no longer need to use affirmative action to maintain adequate diversity on campus. This lack of specificity is especially prescient when you consider Justice O’ Connor’s opinion in Grutter, which emphasizes that the court is only endorsing the use of affirmative action for a pre-determined period of time, in this case 25 years. Assuming the decision in Grutter survives that long, how will universities be able to accurately determine if their affirmative action programs need to be continued if they are forbidden from using quotas?
The current Supreme Court’s response would seem top revolve around the two words that were heard most often during oral arguments this past October: “critical mass.” In their June 2004 Proposal to Consider Race and Admissions, the University of Texas cited the need to achieve, “a critical mass of students from traditionally underrepresented backgrounds,” going on to define critical mass as, “an adequate representation of minority students to assure educational benefits deriving from diversity.”13 And, while that sounds like reasoned, sensible policy, it means next-to-nothing as it is completely unmeasurable. Chief Justice Roberts and the other, more conservative members of the court repeatedly asked Gregory Garre, the attorney arguing on behalf of the University of Texas, when they would be able to tell the court that they had reached this elusive critical mass, and the best he could offer were examples of what was not critical mass. For instance, Garre can say that a 3% enrollment of African Americans does not achieve critical mass, but he can’t say what that critical mass actually is.14
The reason why the concept of critical mass is so crucial to the debate surrounding affirmative action goes back to the majority opinion in Grutter and it’s interpretation of the Equal Protection Clause. Grutter determined that it was in keeping with the 14th Amendment for a university to include a, “narrowly tailored use of race in admissions decisions to further acompelling interest in obtaining the educational benefits that flow from a diversestudent body.”8 For the University of Texas at Austin, that “compelling interest” is represented by this numerically undefined concept of critical mass. It was precisely this lack of specificity in definition that the conservative members of the Supreme Court repeatedly attacked during oral arguments, but, as the appellate brief from the U.S. Court of Appeals for the Fifth Circuit shows, the justices are taking issue with the decision in Grutter more than any specific portion of UT’s admissions policies. The appellate brief maintains that, “Plaintiffs’ criticism ofUT is little more thana thinly-veiled attack on Grutter itself”, pointing out that Grutter explicitly stated that there is no number or percentage that can be said to constitute critical mass.15 This was demonstrated quite clearly by 5th Circuit Judge Emilio M. Garza who, in specially concurring with ruling given by Judge Higginbotham, noted that he did so, despite his belief “that Grutter represents a digression in thecourseofconstitutionallaw…and only the [Supreme] Court can rectify the error.”16 It cannot be said with any validity that the University of Texas did not adhere to the letter of the law as put forth by Grutter, leaving their only potential indiscretion as being the implementation of admissions system that would be retroactively unconstitutional, if the Supreme Court rules in favor of the plaintiff.
Ultimately, the only thing that has changed in the nine years since the Grutter ruling is the composition of the Supreme Court. Since 2003, four Supreme Court Justices have either retired or died. The deceased Chief Justice Rehnquist was considered to be a conservative, while Justices O’ Connor, Souter and Steven were considered liberals. These Justices were replaced by acting Chief Justice Roberts and Justice Alito, who were appointed by George W. Bush, and Justices Sotomayor and Kagan, who were appointed by President Obama. The end result of this is that we have a more conservative court than we did a decade ago and, in the case of a 5-4 decision like Grutter, that makes all of the difference. Especially when you consider that Justice Kagan has had to recuse herself due, most likely, to her work on the case as Solicitor General, and it seems more and more unlikely that affirmative action will survive intact after this case is ruled upon.
I suppose this is the point in the program where I provide my personal rationale for either upholding or striking down Grutter and, by extension, affirmative action as a whole. And, while it is tempting to get bogged down in the minutia of modern college admissions policy, I firmly believe that you have to go back to the source to find the answer to this question. The 14th Amendment was enacted by Congress in 1868 as a way of codifying the civil and political rights of recently liberated African American slaves who were still facing de facto slavery during reconstruction through the implementation of black codes throughout the South. The 13th Amendment banned the institution and the idea of slavery, while the 14th Amendment banned the individual mechanisms by which such practices were carried out. The history of the Civil Rights movement in this country is one of unceasing advocacy for the rights outlined in the 14th Amendment. The rights of due process; the right of suffrage; the right to the same opportunities as anyone else who is a citizen of this nation—these are the things which the 14th Amendment was designed to protect and our continued inability to match practice with principle was what necessitated the implementation of affirmative action in the first place.
Laws do not exist irrespective of the times in which they were made and in which exist. The Equal Opportunity Clause of the 14th Amendment was born out of the fires of The Civil War and 250 years of slavery. For roughly a century it was rendered all but irrelevant by Jim Crow and a society still steeped in a culture of prejudice and racial injustice. It has been less than a half century since President Johnson passed The Civil Rights Act of 1964 and racial division is arguably more entrenched in America now than it was 35 years ago. So, the question that you need to ask yourself is, is this equality? What we live and breathe right now, is that the fulfillment of the promises of the 14th Amendment or, at the very least, have we accrued enough momentum to meet those promises without policies that acknowledge the racism inherent in 21st century life? When the University of Texas at Austin’s freshman class only mirrors 2/3 of the state’s Hispanic population, 1/3 of its African American population and ¼ of its American Indian population, can we say that our progress is sufficient?
In 1996, the decision in Hopwood v. Texas eliminated the use of race-based admissions policies at all undergraduate and graduate programs at Texas state universities. In its stead, the University of Texas employed a number of “race neutral” admissions policies and, in just two years, African-American enrollment had dropped by 40% while Hispanic involvement dropped 5%.16 The next year, the state of Texas enacted the Ten Percent Law, which mandated that all high school seniors in the top 10% of their class be automatically admitted to any state university. The principle reason for the institution of such a law was to, “stem the tide of resegregation evident in the first post-Hopwood class”17 By the time the Grutter decision in 2003, the University of Texas had managed to get minority enrollment back to where it had been pre-Hopwood, but that was still woefully under-representative of the state population at large. The situation at Texas A&M was considerably worse, with slightly more than 1 African-American or Hispanic freshman admitted in 2003 for every 4 African American and Hispanic Texas high school students.17
There has already been a 7 year test run in Texas and we know how this story is likely to play out. If affirmative action is struck down the Supreme Court, you will see a marked decrease in minority enrollment at state universities across the country, followed by a mad scramble to come up with “race-neutral” policies that can give preference to minorities without explicitly stating that as its purpose. If Texas is any indicator, the best we could hope for in such circumstances an eventual return to the already insufficient levels of minority enrollment we see now. We would, as a society, be saying that is enough; that we have reached the critical mass necessary to create an academic environment that reaps the benefits of a diverse student body. We would be saying that everything is equal now and we would be wrong.
1U.S. Const. amend. XIV, § 1.
2Plessy v. Ferguson, 163 U.S. 537, 539 (1896)
3The Civil Rights Act of 1964, title VI, § 601, 78 Stat. 252
6Fisher v. University of Texas at Austin, 1:08-cv-00263-SS [United States District Court for the Western District of Texas (Austin Division)]
7Haurwitz, R. K. M. (2012, February 21). Ut’s race-conscious admission policy facing supreme court test. The Austin American-Statesman
8Grutter v. Bollinger, 539 U.S. 306 (2003)
9Student profile: Enrolled freshman class of 2012. (2012). Unpublished raw data, The University of Texas at Austin Office of Admissions, .
10U.S. Census Bureau, (2012). Texas quick facts from us census bureau. Retrieved from website: http://quickfacts.census.gov/qfd/states/48000.html
11Lee, S. S. (2008). The de-minoritization of Asian Americans: A historical examination of the representations of Asian Americans in affirmative action admissions policies at the University of California. Asian American Law Journal, 15, 129–175
12Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
13University of Texas at Austin (2004): Proposal to Consider Race & Ethnicity in Admissions. Retrieved from: http://www.utexas.edu/student/admissions/about/admission_proposal.pdf
14 Transcript of Oral Argument, Fisher v. University of Texas, No. 11-345 (argued Oct. 10, 2012).
15Brief of Appellees at 2010, Fisher v. University of Texas, No. 09-50822, (5th Cir. March 5, 2010)
16Fisher v. Univ. of Texas, 631 F.3d 213 (5th Cir. 2011)
17Blend It, Don’t End It: Affirmative Action and the Texas TenPercent Plan After Grutter and Gratz, 8 HARV. LATINO L. REV. 33 (2005)