Todd Henderson is Michael J. Marks Professor of Law & Mark Claster Mamolen Research Scholar at The University of Chicago Law School.

When I joined the legal academy more than a decade ago, the topic of affirmative action in higher education was very much in the news. The Supreme Court had just handed down its decision in Grutter v. Bollinger, which upheld the practice at the University of Michigan Law School based on the assumption that minority representation was necessary for delivering a quality education. When discussing Grutter with a colleague from another school, the question of these educational benefits came up, and there were no easy answers. We both could imagine circumstances in which the perspective of a particular minority student might change the substance of the discussion, but we second-guessed ourselves because this both assumed the views of the minority student – it was racist – and demeaned the ability of other students to think outside themselves without this prompting. The stereotyping and shortselling were sufficient to give us pause. But at the end of the day, one comment from that discussion stuck with me: “Can you imagine the University of Chicago Law School without black faces?”

Frankly, I can’t, and being at a private university with a commitment to affirmative action, I will probably never have to face this possibility. Importantly, the fact that private entities are engaged in the practice is suggestive that public entities competing with them in the market for higher education should be permitted to do so as well: when government entities follow private ones in competitive markets, the worries about government abuse are fewer. But the Constitution nevertheless constrains public entities in some ways, including presumptive bans on racial classifications. So the Supreme Court is repeatedly called on to determine whether a particular racial classification or preference, whether it be in construction contracts, jobs in the Bureau of Indian Affairs , or university admissions, are constitutional. It is worth remembering that the constitutional limits on race-based decisions are designed to prevent government from using race in pernicious ways, regardless of the alleged motivation.

Thursday’s opinion in Fisher v. University of Texas (Fisher II) turned on the same questions about educational benefits that my colleague and I discussed over a decade ago. Interestingly, the case comes roughly at the midpoint of the twenty-five-year sunset for affirmative action that Justice O’Connor announced in Grutter. It also comes in the wake of the Court’s earlier conclusion in Fisher I that universities’ vague justifications for race-based admissions were not entitled to complete deference, but instead the universities must prove that the policies satisfied the requirements of strict scrutiny. Despite the O’Connor prediction that we’d be over the hump of affirmative action and the seemingly difficult burden of proof set by Fisher I, the Court reinvigorated affirmative action by upholding the University of Texas’s “holistic” use of race in its admissions decisions.

In his majority opinion, Justice Kennedy (for the first time in three decades ruling on the side of a race-based policy) put the legal challenge clearly: the law is trying to “reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.” The majority opinion notes many potential gains from race-based admissions policies, including: “promot[ing] cross-racial understanding, help[ing] break down racial stereotypes, . . . enabl[ing] students to better understand persons of different races . . . [and] prepar[ing] students for an increasingly diverse workforce.” At the end of the day, Kennedy believes universities are entitled to the deference the Court said in Fisher I they weren’t entitled to because their admissions policies are “central” to their mission and identity, and because these policies are intangibles that are “incapable of objective measurement but which make for greatness.” But, in a nod to Justice O’Connor’s setting sun, Justice Kennedy noted that such deference was not assured in the future, noting that the University of Texas has an obligation, presumably enforceable in future litigation, to use its experiences to ensure its race-based policy was still “fair” and “necessary.”

In his lengthy dissent, Justice Alito made three points. First, the deference the majority gave the University of Texas was legally foreclosed by Fisher I. It was not enough to claim, as Kennedy did, that universities should have the power to set their own policies; at least when it comes to race, the precedent, Alito claimed, required something approaching empirical proof that the race-based justifications were required. Alito’s challenge seems in the spirit of the trend in the social sciences practiced on campuses, like Texas, toward using increasingly sophisticated empirical techniques to answer difficult questions of causation like this.

Second, the justifications offered by Texas were insufficient in light of the “inherently suspect” use of race. Alito argued that Texas had not proved the need for racist policies – favoring blacks and Hispanics over whites and especially Asian Americans – to achieve the goals of “cross-racial understanding” or “breaking down racial stereotypes,” despite the abundance of evidence available to them. Kennedy demurred, noting that Texas and other states could be laboratories of experimentation during the last half of the O’Connor window. But Alito countered that no evidence could ever prove these abstract claims.

Finally, Alito doubted the truthfulness of the claims about the goals of the Texas program and other affirmative action programs. He noted the absurdity of claiming to break down racial barriers by admitting some races (e.g., blacks) at the expense of others (e.g., Asians). He also pointed out a deep irony in the Texas plan: the use of race as a plus factor for students outside of the top ten percent of their high school class (who are admitted by right) was designed to help richer black kids in more diverse high schools, despite the fact that affirmative action has been sold not as a quota system but as a way to help disadvantaged children. Alito also criticized the racial classifications made by Texas as simplistic and out of date – “white,” “black,” and “Hispanic” hardly describe today’s increasingly melted pot.

To my mind, Justice Alito makes a much stronger case on the facts and the law. The justifications Texas made for its program seem flimsy, vague, and, probably, unprovable. Nothing in my experience in higher education, either as a student or professor, suggests that the system of racial preferences – helping blacks, hurting Asians, etc. – is achieving the ends Texas claims it is pursuing. There are claims that a university could make and prove with the right analysis, but they are not these. I read the Alito opinion simply as saying that we must hold public institutions to this very high standard. As for Justice Kennedy’s response that Texas can use the next few years to “learn and to teach,” a response is that private institutions can do just this. The University of Chicago will continue its race-based policies, while Hillsdale College will not. We could, if the subject were not so toxic for researchers, get data from these experiences, and measure the impact of having minorities in classrooms and on campus. Does everyone learn more when classrooms look like America? Do students on campus integrate or remain segregated by race? What are the best ways of achieving broad educational access for all Americans, regardless of race or income or the like? These questions can be addressed by private school data, and without the taint and potential for abuse when politicians make race-based decisions. I doubt anyone will do this analysis, but not because the answers are not interesting or attainable, but because the powers that be don’t want to know the answers.

It is safe to say that most people in America lament the state of primary education in many minority communities, and would wish for blacks and Hispanics to have the same chance of success as their white and Asian-American neighbors. Fixing the problem of access to quality education is a national problem that cries out for innovative solutions at the local, state, and federal level. But all too often, affirmative action programs in universities have the appearance of a salve for white guilt. Or, even worse, aesthetics. After all, when my colleague asked about black faces at Chicago, it was this ground that motivated my revulsion at the thought of no affirmative action. I personally believe that racial inequality should be the most important policy issue of the day and that we should make radical changes to our education policy to give every American child a fair shot at success. But racist policies in higher education seem like an ineffective and potentially perverse mechanism to do this. But this could be wrong – maybe there is proof out there that these programs are vital to the educational mission. I’m skeptical the proof exists or will be discovered, but will be delighted to be proved wrong. It would be better, I think, to justify affirmative action on the grounds of racial reparations, but the Court has foreclosed this possibility.

At the end of the day, the Court in Fisher II decided that we are going to continue to let our public institutions make race-based determinations under the possible threat that some day, whether it is in thirteen years or 130 years, the Court may demand proof that isn’t forthcoming and put an end to the “sordid business” of “divvying us up by race.”


Posted in Fisher v. University of Texas at Austin, Symposium on the Court's ruling in Fisher II

Recommended Citation: Todd Henderson, Symposium: What proof should we demand to justify racist policies?, SCOTUSblog (Jun. 24, 2016, 10:04 AM),