About Ruth Colker

Ruth Colker is the Distinguished University Professor and Heck-Faust Chair in Constitutional Law at the Moritz College of Law at the Ohio State University. Her primary research interests are special education, disability discrimination, and GLBT issues. This blog is a forum for her to post her current work and generate discussion about topics of interest to her.

Understanding Fisher v. University of Texas

What can a law school admissions officer learn from a close reading of Fisher v. University of Texas?  A bit.

Top Ten Percent Plan

Fisher is a paradoxical case to resolve the constitutionality of a law school admissions program, because its race-conscious plan is quite different from the mechanisms used by most law schools to attain diversity.  Thus, it is important to understand the facts in Fisher to understand its applicability to law school admissions.

At the time of the Fischer litigation, the University of Texas (“UT”) used the Top Ten Percent plan to admit all students who ranked in the top ten percent of their class at Texas high schools.  In 2008, the Top Ten Percent plan resulted in 5,114 students being enrolled at UT.  Of those 5,114 students, 302 (6 %) were African-American and 1164 (23 %) were Hispanic

UT, however, was not satisfied with admitting its entire class through the Top Ten Percent plan.  It sought to be more academically selective (as measured by test scores) and regionally diverse by admitting some students who did not rank in the top ten percent of a Texas high school class. In 2008, UT allocated 1,601 of 6,715 spaces in the class to students who were not admitted through the Top Ten Percent program.

Alternative Mechanism

So, UT had to create an alternative mechanism to fill those 1,601 spaces.  It chose to fill the remainder of the class through a combination of a student’s Academic Index (AI) and Personal Achievement Index (PAI).  The AI was a combination of GPA and test scores.  The PAI sought to measure a student’s leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s background, including race. The admissions committee would plot the student’s AI on the x-axis and the student’s PAI on the y-axis.  A line was drawn on a grid to determine who was above and below the admissions requirements to fill those remaining 1601 spaces.

A problem faced by UT was that this alternative mechanism diluted the diversity of the class that was otherwise achieved through the Top Ten Percent plan, because it placed considerable weight on standardized test scores. This problem can be easily seen for Hispanics, the largest minority group in Texas.  In 2008, Hispanics were 23 % of enrolled students under the Top Ten Percent plan.  (Hispanics were 36 % of the Texas population in 2008.) But Hispanics were only 11 % of enrolled students under the alternative plan, even with a race-conscious factor in the PAI, bringing the overall percentile of Hispanics who were enrolled as students down to 20 %.  If Hispanics were not given the benefit of a race-conscious factor in calculating their PAI, the overall percentile of Hispanics who enrolled as students could have dropped as low as 17 %.

The alternative mechanism did succeed in increasing academic selectivity as measured by test scores.  While the median SAT score for the Top Ten Percent group was in the 1200-1290 band in 2008, the median SAT score for the alternative group was in the 1300-1390 band in 2008, even with the use of a race-conscious factor for the alternative group.  And the use of the alternative mechanism’s race conscious factor caused the overall percentage of Hispanics to decline from 23 % to 20 % but avoid declining all the way down to 17 %.

UT’s alternative mechanism was also clever in the way it was race-conscious. The admissions committee did not know a student’s race when making an individual admissions decision.  Decisions were made on the basis of the AI and PAI scores, exclusively.

Contrast with Law School Admissions

UT’s admissions program is quite different from the typical law school admissions program at a selective university.  Law schools often use a modified grid (with GPA on the x-axis and LSAT score on the y-axis) to admit most of their class.  That method of admission usually results in little racial diversity.  They then use a more subjective system to increase racial diversity beyond the diversity achieved through their regular admissions process. By contrast, UT achieved considerable diversity through its regular admissions process – the Top Ten Percent plan.  Its alternative admissions process diluted the diversity attained through its regular admissions program.  UT added race as a factor to the alternative admissions process to avoid excessively diluting the racial diversity that was otherwise attained through the Top Ten Percent plan.

UT’s program is also unusual in the way that admissions decisions are made with the final reviewer not even knowing the race of the admitted student.  By contrast, the admissions officer at the University of Michigan Law School program at issue in Grutter v. Bollinger was well aware of the applicant’s race at the time of decision. In fact, Justice Kennedy dissented in Grutter, in large part, because he was upset with the race-conscious aspects of the Michigan admissions process.  “The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself.” (Grutter, 539 U.S. at 392).  The Fisher decision brings into question the constitutionality validity of those daily reports.

Three Legal Principles Established by Fisher

So let us now turn to the legal principles established by Fisher.

First, it is important to note that the lower courts decided Fisher on a summary judgment motion.  Grutter was decided after a full trial at which admissions officers testified.  Kennedy emphasizes that the lower courts decided Fisher on a summary judgment motion and hints that UT could only offer “sufficient evidence” to justify its program after a full trial. (Slip opinion, p. 13).  Thus, Fisher possibly means that more of these kinds of cases will go to trial rather than be decided on summary judgment.

Second, it is important to remember that Justice Kennedy has never found an affirmative action program that he can conclude is constitutional.  In Grutter, he dissented.  In Parents Involved in Community Schools v. Seattle School District No. 1, he concurred separately to conclude the diversity plans were unconstitutional.  And, in Fisher, he refrained from affirming the Fifth Circuit.  More importantly, one may understand his opinion in Fisher as elevating his dissenting opinion in Grutter to a majority opinion.

Third, the Fisher opinion provides two important principles that should be considered on remand: (a) that the university treated each person as an individual, and (b) that the university can demonstrate it could not attain diversity through a race-neutral alternative.

With respect to treating each person as an individual, the Fisher opinion says, quoting Grutter, that a race-conscious admissions program must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” (slip opinion, p. 7, quoting Grutter, 539 U.S. at 337).  Admissions officers cannot, for example, pull one student off the waiting list in August merely because that student would add diversity to the class.

With respect to race-neutral alternatives, Fisher emphasizes that the court should engage in “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” (slip opinion, p. 10).  And, at this stage of the inquiry, the Court should “not defer to” the university’s “serious, good faith consideration of workable race-neutral alternatives.” The second quotation comes from Grutter (539 U.S. at 339-340).  But the “not defer to” language cannot be found in the majority opinion in Grutter.

The “not defer to” language can be found, instead, in Kennedy’s dissent in Grutter where he says: “The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued.”  (Grutter, 539 U.S. at 388).

Fisher Remand

Which of these two factors is likely to be important on remand in Fisher?  It is hard to see how UT does not pass muster under the first factor, because the admissions officer did not even know the applicant’s race at the time the offer of admission was made.

The race-neutral alternative requirement, however, is likely to prove more challenging on remand.  In 2008, UT enrolled 20 % Hispanics through a combination of Top Ten Percent plan (23 % Hispanic) and Alternative admissions (11 % Hispanic). The alternative program dropped the Hispanic percentage from 23 % to 20 %.  Had no Hispanics been admitted through the alternative program, the Hispanic percentage would have dropped to 17 %.  Can UT justify a race-conscious element to the alternative program in order to avoid risking enrolling an incoming class that is 17 % Hispanic rather than 20 % Hispanic?

Unfortunately, the rule governing this issue is ambiguous.  The Fisher Court tells us that it is appropriate to defer to a university’s “educational judgment that such diversity is essential to its education mission.” (slip opinion, p. 9, quoting Grutter, 539 U.S. at 328).  But at the means step of the inquiry, “the University receives no deference.”  (slip opinion, p. 10).

The “sufficient diversity” rule, however, is a combination of ends and means.  If UT receives deference in defining how much diversity it should be able to attain, then the court, on remand, would have to accept the 20 % figure as an appropriate diversity goal.  If that goal is accepted, UT can presumably demonstrate that it cannot achieve that goal (while also valuing selectivity) without using a race-conscious factor in the alternative admissions process.

But if UT merely needs to demonstrate that it could not achieve its diversity goal without a race-conscious element in the alternative plan, I don’t see why a remand is necessary.  The factual record with regard to the credentials of candidates is in the record.  The Supreme Court could have done the math on its own.

But if UT must demonstrate why it needs to enroll 20 % Hispanics rather than 17 % Hispanics then a remand is necessary.  That remand would especially be necessary if the Court is not willing to defer at all to UT’s articulation of how much diversity it needs.  I therefore worry that the Court has devised a new hurdle – requiring universities to justify exactly what level of diversity is necessary to attain “sufficient diversity.”

My Advice

So, what would I advise law school admissions officers?  They should prepared to argue:

(1) We did not even know the race of an applicant at the point in the process in which we made the admissions decision.

(2) We had available no race-neutral means to attain racial diversity.

(3) We have an empirical basis for concluding that X amount of diversity is necessary to fulfill our educational mission.

The remand in Fisher may give us further insight into how these arguments are considered.  But, if I were an admissions officer, I wouldn’t wait another four years to revise my program.  To the extent possible, I would be immediately devising a program that could meet those three criteria.

And, yes, I am very happy not to be an admissions officer!


Marriage Equality Decisions

Deeply Conservative

 I understand that the gay rights community is cheering at its dual victories in the Supreme Court in United States v. Windsor  and Hollingsworth v. Perry.  But memories are also so short.  One might ask – how could this be the same Court that earlier narrowed the right of a state university to seek to enroll a diverse student body in Fisher v. University of Texas, removed the core of the Voting Rights Act in Shelby County v. Holder and limited employer liability for workplace harassment in Vance v. Ball State?

The answer is simple. Both Windsor and Perry are narrow, conservative decisions.   In both cases, the Court took the narrowest route available to rule in favor of the gay rights claim without fully vindicating the gay rights position.

Let’s start with Windsor.  Before one state had made it possible for same-sex couples to marry, in a fit of hysteria and prejudice, Congress passed the Defense of Marriage Act by an overwhelming majority in 1996.  Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other states. Section 3 defines the term “marriage” and “spouse” under federal law so that those provisions would not apply to married, same-sex couples under more than 1,000 federal statutes, regulations or directives.

Only Section 3 was attacked in Windsor as being unconstitutional as applied to Edith Windsor and Thea Spyer, who were legally married in Canada in 2007.  When Spyer died in 2009, Windsor could not qualify for the federal marital tax exemption.  DOMA cost Spyer $353,053 in estate taxes.  She challenged DOMA, arguing that it violated the guarantee of equal protection as applied to the federal government through the Fifth Amendment.  By the year 2009, when she brought this suit, the state of New York was willing to recognize her marriage consummated in Canada.  And before this case was decided, New York amended its marriage laws to allow a same-sex couple to marry in New York.

Edith Windsor did not ask the Court to rule that a state must allow her to marry someone of the same sex. Nor did she argue that New York was required to recognize a marriage consummated in Canada.  She merely argued that the federal government, out of outright prejudice, could not refuse to recognize her marriage. The prejudice in 1996 was so brazen that the House Report quite comfortably stated that DOMA expressed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

The courts, however, did not rush to assist individuals like Edith Windsor who sought to take advantage of the benefits of marriage.  No, the Court waited until New York and 11 other states decided to extend the benefits of marriage to same-sex couples.  It does not rule that same-sex couples anywhere in the United States are entitled to the benefits now enjoyed by Edith Windsor.  It merely rules that DOMA is invalid to the extent that it has the “purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.  This opinion and its holding are confined to those lawful marriages.”

Although the Court purported to decide the case on equality grounds, the logic of its equality ruling was that equal treatment was only appropriate if the state had made the decision to extend equality to same-sex couples.  Same-sex couples who face the worst discrimination because they live in states that do not even recognize their relationships receive no relief.  They are permanent second-class citizens rather than merely second-class for federal purposes (but first-class for state purposes).

Hence, the Court’s decision in Windsor reflects the very least the Court could have done if it chose to reach the merits.  But, even so, its decision only garnered the votes of five members of the Court.  The other four conclude that it is permissible for the federal government to accord second-class status to same-sex couples as long as we live in a society in which we allow more than 30 states to fail to recognize their relationship at all.

Perry reflects another narrow, conservative way to handle these issues.  The procedural background in Perry is unusual.  In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution.  For six months, same-sex marriages occurred in California.  Then, the voters passed Proposition 8, which eliminated same-sex marriage in California.  In response, the Perry plaintiffs filed suit in federal court, arguing that Proposition 8 was unconstitutional on federal constitutional grounds.  The district court judge ruled in their favor but the decision was stayed pending appeals.  The state of California chose not to appeal the district court decision but the official proponents of the initiative were allowed to defend it in the Ninth Circuit.  In a very narrow ruling, the Ninth Circuit affirmed the district court, concluding that it was unconstitutional for the state to “withdraw[] a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.”  If affirmed by the Supreme Court, the Ninth Circuit’s decision gave the Court the opportunity to overturn Proposition 8 without concluding that all states must recognize same-sex marriage.  California happened to be the only state that had allowed same-sex marriage and then withdrew it.

While conceivably appealing to a Court looking for a narrow decision path, I never could swallow the Ninth Circuit’s rationale.  Is it truly better to live in Alabama where the prospects for marriage equality through the regular legislative process are virtually zero than to live in California where the courts, executive branch and probably even the voters are likely to favor marriage equality?

No member of the Court sought to defend the Ninth Circuit’s logic.  Instead, both the majority and dissenting opinions focused entirely on the narrow issue of “standing.”  Writing for the majority, Chief Justice Roberts said: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.  We decline to do so for the first time here.”  The Court vacated the judgment of the Ninth Circuit (because it also did not have standing to hear the case) and returned it to the district court (where it had previously been held unconstitutional).

Technically, the Perry decision only affects the San Francisco district court area that heard the initial case.  But, given the politics of California, it is likely this decision will soon extend to the entire state.

So what do we have in terms of victories?  Marriage has won.  A new group of people, same-sex couples, can seek to join the institution of marriage in California. And those who live in the thirteen jurisdictions that currently allow same-sex marriage have one more reason to get married – the availability of over 1,000 federal benefits (and, in some cases, responsibilities).

More fundamentally, I do hope the Court’s decisions make gay men, lesbians and bisexuals feel like more welcome and full members of society.  I hope they attain more dignity even in states, like my own, that do not permit same-sex marriages.

But let us not forget those decisions were narrow and conservative and are part of a larger legal landscape in which this Court attacks affirmative action, voting rights, and workplace equality.  These decisions do make sense in that context.