Symposium: The constitutional hole in holistic review

Andrew M. Grossman practices appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP, and Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, where Mr. Grossman is an adjunct scholar.They filed amicusbriefs at both thecertiorariand merits stages in this latest iteration of Fisher v. University of Texas at Austin.

Since the Supreme Court agreed to revisit the constitutionality of the University of Texass use of racial preferences, supporters of affirmative action have been publicly consoling themselves that the resulting decision will be a narrow one. Abigail Fisher, after all, doesnt ask the Court to overturn its endorsement, in Grutter v. Bollinger (2003), of diversity as a government interest sufficient to justify race-based decisionmaking. And UT is unique in guaranteeing admission to the top ten percent of graduates of every high school in Texas and thereby arriving at a diverse student body irrespective of any racial machinations. No matter what the Court does, they say, the post-Grutter consensus of Dont Tell, Dont Ask — that is, courts wont intervene so long as universities keep the details of their race-based programs in the shadows — will endure.

This is blinkered. We know from Joan Biskupics reporting that a five-Justice majority was prepared in 2013 to strike down the UT program and restrict affirmation action nationwide and apparently changed course to placate Justice Sonia Sotomayor and forestall a particularly vicious dissent. That didnt work — Sotomayor repurposed her work into an ill-fitting dissent in Schuette v. Coalition to Defend Affirmative Action (2014) — the Fifth Circuit didnt get the message, admissions offices havent changed their practices, and now here we are again.

Texass Top Ten Percent law may be unique, but the way that UT uses race isnt. Like basically every other college that awards racial preferences, it does so through holistic review. While about eighty percent of students come in through automatic admission, the rest are channeled through that process. In holistic review, readers assign each applicant a personal achievement score from 1 to 6 based on such factors as demonstrated leadership qualities, extracurricular activities, honors and awards, work experience, and community service. And, since 2004, race.

UT says that its trying to achieve qualitative diversity — what it calls diversity within diversity — within a critical mass of underrepresented minorities on campus. Given that the standard here is strict scrutiny, its important to ask how exactly university officials have tailored their consideration of race to achieve that scientific-sounding (yet still largely nebulous) goal.

The answer is that they havent. To be sure, UTs admissions officials believe that race is an important credential to be considered and therefore ensure that application readers are certainly aware of the applicants race by requiring that it be reported on the front page of the application. But the university doesnt train its application readers on how specifically to make use of race in evaluating applications. Thats a notable omission, because the school claims not to use race as a plus factor in favor of applicants from minority groups that it believes are underrepresented on campus. Instead, its officials testified that race can potentially benefit any applicant, regardless of race, at the readers discretion. Nor is there a particular weight given to race when it is used as a plus factor; that too is left to the readers discretion. And despite using race in this open-ended way, the university doesnt provide a second review to ensure consistency in application readers use of race — as it does with the grading of application essays.

This is why, when the district court sought to find some explanation as to how UT actually uses race — not what it says it does in general terms, but what its application readers specifically look for and do when they review files — the only evidence it could muster was that the school values a sense of cultural awareness. That distinctive phrase — cultural awareness — appears a dozen times in the testimony of the universitys admissions consultant, as well as repeatedly in the testimony of its associate director of admissions. But neither was willing to explain exactly what this means or how it works — that is, who gets a benefit and how much?

How all this contributes to qualitative diversity on UTs campus is anyones guess. Literally: the University of Texas has no idea whether its use of race actually furthers its stated purpose.

Indeed, the university says it has no measurement of — and no way of finding out — how many students have been admitted due to its consideration of race or who these students might be. Its director of admissions testified that consideration of race couldnt be dispositive as to any particular applicant and that he couldnt identify any applicant admitted based on race.

Believe it or not, none of this is unusual. Many schools viewed Grutter as a blanket endorsement of holistic review, no matter the particulars of strict scrutiny. For them, the opacity of holistic review is a virtue, because it allows administrators to engage in what is effectively racial balancing — a practice that the Supreme Court invalidated in Grutters companion case, Gratz v. Bollinger — without having to admit as much.

This is nothing new. Decades ago, under the guise of promoting a diverse student body, Harvard College used holistic review as a means to reduce the number of Jewish students. In the 1960s, it used the same technique to boost enrollment of minorities. As Alan Dershowitz has recounted, to avoid scrutiny and controversy, Harvard was circumspect about the methods it used to target them or the quantitative factors at work, instead using the language of diversity and holistic review. As a practical matter, however, Harvard was significantly lowering its traditional academic standards for many minority applicants, making race the defining feature in their admissions.

Evidence suggests that Harvards holistic review program continues to facilitate forbidden racial quotas, now against Asians. Going by the numbers regarding academic achievement — which is still the dominant factor in admissions — Asian Americans admitted to Harvard are underrepresented by a factor of half or even two-thirds relative to the number of applications from Asian Americans that Harvard receives. And its not just Harvard: the same pattern is evident at other elite universities.

None of this has been lost on the Court. Justice Anthony Kennedy, in particular, has been attentive to the ways that programs which focus on individualized review, but without the safeguard of searching judicial review to ensure narrow tailoring, can be abused.

And its difficult to see how a holistic review program can possibly withstand strict scrutiny. For one, a university defending racial preferences must establish, in detail, how decisions based on an individual students race are made, including how and when it uses race. But its own evidence shows that its holistic review program is structured to avoid any precise how or when, giving free rein to application readers.

Second, whether or not UT can demonstrate the necessity of racial classifications, it has failed to show that the race-based means it has chosen fit its diversity goal. To the contrary, its use of race is completely divorced from its stated goal of achieving qualitative diversity. This is true as to the particulars of the program itself, which uses race in an ad hoc fashion rather than tying it concretely to the universitys stated goal. And its true of the choice to design a program that is incapable of monitoring, evaluation, or even identifying afterwards which applicants were benefited by, or admitted due to, race. The university has no way to know whether its holistic review is advancing its diversity goal or not; no way to make required adjustments that would improve the programs fit; and no way to demonstrate that its applying racial preferences no larger than necessary or that the contours of its program are less restrictive and less burdensome than other possible designs — all of which it must do to satisfy the exacting judicial review that the seven-to-one Court called for in (what will now be called) Fisher I.

Third, although UTs holistic review program might appear, despite any other flaws, to at least provide for individualized consideration of applicants, the record doesnt actually support that point. Due to the black-box nature of the admissions process, the university cant show that its reviewers do not treat race as the defining feature of applications. In other words, theres no way to ascertain whether it amounts to a thumb or a brick on the scale in calculating any given applicants personal achievement score.

In the end, we doubt that theres any way to conduct holistic review thats consistent with strict scrutiny. Directing application readers to consider a pile of factors, including race, and then assign a single holistic score is not a reasonable and tailored way to advance any lawful diversity interest. And even if it were, that processs opacity precludes a university from meeting its evidentiary burdens in demonstrating the necessity and fit of racial preferences. These shortcomings are inherent to holistic review: subterfuge is the point, as is the lack of accountability that it enables.

We see no reason why the Court would focus on the relatively narrow issue that occupied the Fifth Circuit — the necessity of racial classifications in the context of Texass Top Ten Percent law — when it has the opportunity to consider the more important issue of holistic reviews constitutional viability. That issue has attracted the Courts attention in the past and seems to be the conservative majoritys foremost ground of disagreement with the Grutter majoritys application of narrow tailoring. Perhaps more importantly, if Kennedy is serious about enforcing strict scrutiny as the essential safeguard Justice Powell insisted upon as the precondition of the approval of affirmative action programs, taking aim at holistic review is exactly the way to do it.