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Online Fisher symposium: Affirmative action after Fisher – back to the future?

The following contribution to our Fisher symposium comes from David E. Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. Professor Bernstein is also an expert on the “Lochner era” of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

I recently attended a panel discussion on Fisher v. University of Texas at an academic conference.  Each panelist began his remarks by acknowledging America’s increased ethnic diversity.  Yet the remarks focused almost entirely on the perceived benefits (or lack thereof) of affirmative action preferences for African Americans, and the perceived justice (or injustice) of disadvantaging or inconveniencing whites to provide those benefits.

America’s other racial and ethnic groups were ignored.  There was nary a mention, for example, of Hispanic Americans, who are now more numerous than African Americans and are the primary beneficiaries of affirmative action at the University of Texas-Austin, where they outnumber blacks by more than four to one.  Also ignored were Asian Americans, who constitute around six percent of the U.S. population and who are significant losers from race-conscious university admissions policies, but who benefit from racial preferences in other contexts, such as contracting set-asides.

The panel was no anomaly.  Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans.  This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds.  Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in the 2003 Grutter case.

So universities must publicly declare that their only interest in affirmative action is to ensure a diverse student body, and they have created internal bureaucracies dedicated to the diversity ideal.  Nevertheless, and despite the fact that African Americans are a shrinking minority of those eligible for affirmative action preferences, the underlying ideological justification for affirmative action preferences, especially on university campuses, remains to redress past and present discrimination against African Americans.  (And, to put my own cards on the table, like most academics I find this rationale much more persuasive than I find the diversity rationale. Few law professors, at least, really think that the primary justification for university affirmative action programs is that they make campus life more interesting for white students.)

Enter Fisher v. University of TexasFisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity”; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.  Therefore, neither the diversity rationale nor the social justice rationale has the force in Fisher they have had in previous cases.

With regard to diversity, the University of Texas‑Austin had a very ethnically “diverse” class without using racial and ethnic preferences. In the final year of the university’s race‑neutral admissions system, Hispanic and African American students constituted a total 21.4% of the entering freshman class, and Asian Americans made up another 17.9% or so of the class. This made UT‑Austin one of the most ethnically diverse elite universities in the country, and, one might think, substantially undermined the state’s claim that it has a constitutionally compelling interest in using preferences for “diversity” purposes.

Texas nevertheless added a race-conscious element to its admissions policy after Grutter.

The university argued, and the Fifth Circuit Court of Appeals agreed, that it had the constitutional authority under Grutter to be concerned not simply with overall demographics, but with the demographics of individual programs within the university, and, indeed, individual classes.  This conclusion goes well beyond Grutter and is therefore extremely unlikely to be adopted by a Supreme Court that is now more conservative than it was in 2003.

Perhaps more significant, Fisher represents the first racial preferences case to come before the Supreme Court in which African Americans are not the primary intended beneficiaries, and whites are not the only, or even the primary, group who will be put at an official disadvantage by university policies.

Texas has argued that it should be able to engage in preferences to bring the demographics of its undergraduate class closer to the demographics of the state.  Under that standard, while African Americans and Hispanics were “underrepresented” under Texas’s race-neutral admissions policies, Asian Americans were and remain wildly overrepresented.  Asian Americans constitute only 3.5% of the Texas population, but are about five times that percentage of undergraduate students at UT-Austin.

As a result of the university’s attempts at racial and ethnic balancing, among enrolled students who have been admitted under race-conscious criteria Asian Americans have not only needed significantly higher SATs and GPAs than have Hispanics and African Americans, but have also needed higher scores than whites.

As the Hispanic and Asian populations of Texas continue to grow, assuming Asian Americans continue to outperform other groups academically, the only way for UT-Austin to achieve a “balanced” class will be to favor the former at the expense of the latter.  And there’s little doubt that UT will likely do so – sound academic research has shown that other elite universities routinely discriminate against Asian-American applicants in their pursuit of a “balanced” and “diverse” class.

So, unlike every race/ethnic affirmative action case to reach the Supreme Court, where the underlying conflict has been primarily black‑white, Fisher represents the affirmative action of the future, where Hispanic Americans, the largest government‑defined minority group in the country, are the primary beneficiaries, and another large and growing group, Asian Americans, suffer the most harm.

Complicating matters further is that “Hispanic” status for affirmative action is not defined in racial or ethnic terms, but solely on the basis of Spanish-speaking ancestry.  In practice, then, Texas is arguing that a state university can and should, consistent with the Equal Protection Clause, favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent over a dark‑skinned child of Vietnamese boat people.  The latter, indeed, may find himself at a disadvantage to a wealthy white applicant, because he is defined as part of a census category of Asian Americans who are “overrepresented” at UT.

In short, despite all the diversity talk necessitated by Supreme Court precedent, the primary underlying justification for affirmative action preferences has always been the felt need to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery, Jim Crow, and discrimination.  UT policy, by contrast, while also favoring African-American applicants, primarily pits ones group composed mostly of post‑1965 immigrants and their children against another, with no apparent justification beyond the blunt political fact that Hispanics are a much larger voting constituency in Texas.   I suspect that the Supreme Court will not find this terribly persuasive. In the long run, the only way to save affirmative action preferences may be to limit them to their original primary intended beneficiaries, African-American descendants of American slaves.

Recommended Citation: David Bernstin, Online Fisher symposium: Affirmative action after Fisher – back to the future?, SCOTUSblog (Sep. 6, 2012, 3:54 PM),