Judging Opportunity Lost: Race-based Affirmative Action and Equality Jurisprudence After Fisher v. University of Texas

Chapter 5
Judging Opportunity Lost: Race-based Affirmative Action and Equality Jurisprudence After Fisher v. University of Texas

Mario L. Barnes, Angela Onwuachi-Willig, and Erwin Chemerinsky

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him to the starting line of a race and then say, “you are free to compete with all others,” and still justly believe you have been completely fair … This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity … not just equality as a right and a theory, but equality as a fact and equality as a result.

Lyndon B. Johnson, Commencement Address, Howard University, June 4, 19651


Within United States history, social and judicial understandings of the Constitution’s pronouncement, “[N]or shall any State deny to any person within its jurisdiction equal protection of the laws,” have been deeply conflicted when applied to the concept of race. For example, in 1896, in the case of Plessy v. Ferguson, the U.S. Supreme Court held that state laws requiring racially segregated public accommodations did not violate the Equal Protection Clause of the Fourteenth Amendment.2 This endorsement of segregation as being consistent with the goals of equality, however, was famously revisited in 1954, in Brown v. Board of Education, where the Court struck down Plessy’s “separate but equal” mandate.3 In so doing, the Court signaled that the language of the Fourteenth Amendment should be understood as rejecting state-enforced racial segregation as constitutionally permissible. As shifting as the Court’s treatment of race has been, these two cases reflect the Court dealing with programs designed to disadvantage racial minorities. Even more controversial in our country’s recent history, however, have been state considerations of race that have advantaged members of certain discrete minority racial groups. These programs, which have been constructed for myriad purposes including remedying past racial exclusion to fostering racial inclusion and diversity, have typically come to be referred to as affirmative action.4

Concerns about the fairness of race-based affirmative action programs have been the subject of much scholarly debate from a wide range of political perspectives.5 Moreover, citizen attitudes toward such programs are often contradictory.6 While arguments against affirmative action have been ostensibly fueled by contemporary commitments to “colorblindness” and “post-racialism,”7 a significant substantive debate has centered on whether courts should consider state considerations of race for affirmative action programs to be as suspect as invidious racial classifications.8 Opinions on this topic have been shaped by whether the Equal Protection Clause is interpreted to require all people to be treated the same or whether it should be understood as a guarantee of equal opportunity.9 This is essentially the distinction to which President Johnson alluded in the quotation at the beginning of the chapter. Within the scholarly discourse, this distinction has also been described as a difference illuminating an “anti-classification” versus an “antisubordination” approach to equal protection.10 While two authors of this chapter have previously written that the Fourteenth Amendment should be interpreted in light of the goal of the Reconstruction amendments to make freed slaves full citizens, we now advance a more contemporary approach to constitutional interpretation. We suggest that with regard to race-conscious affirmative action, courts should guide their consideration by what role law ought to play in mitigating long-term, structural disadvantages maintained through race now functioning as caste within the U.S.

In this chapter, we shall provide an overview of the rise, and, perhaps, approaching demise of race-based affirmative action programs in the U.S. Within the areas of employment and contracting, governmental considerations of race-based benefits have already been severely curtailed through state executive orders,11 ballot initiatives,12 and direct legal challenges to state and federal programs. In fact, education is the only real area where there is still some modest room to consider race-conscious assignments plans.13 Although, recent Supreme Court cases have both curtailed how race can be used and set the stage for the future revisiting of this last domain of race-conscious consideration.14

In this chapter we will primarily analyze the Court’s history of applying the Equal Protection Clause to governmental programs that have sought to consider race as a factor in awarding educational, employment, and contracting opportunities. Initially, we will review the origins of such programs. We will then focus primarily on the area of education and assess what the Supreme Court’s opinions in the most recent educational affirmative action case—Fisher v. University of Texas—portend for the viability of affirmative action moving forward. In so doing, we will question what these education cases reveal about the Court’s understanding of race as a social construct and suggest how this understanding resulted in Fisher being a missed opportunity for the Court to substantively address how equal protection jurisprudence should be reconciled with race-based decision-making.

A Brief History of Affirmative Action

The Executive Genesis of Affirmative Action

In 1961, President John F. Kennedy issued Executive Order 10925, which created the Committee on Equal Employment Opportunity (CEEO), in part, to “recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination” and mandated government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”15 This mandate to contractors was reiterated in 1965, when President Johnson superseded Kennedy’s Order with Executive Order 11246. Johnson’s Order abolished the CEEO while passing on some of its functions to the Equal Employment Opportunity Commission, included Kennedy’s affirmative action language, and also empowered the Secretary of Labor to ensure contractor and agency compliance. However, Johnson’s Order went further by requiring government contractors, except where exempted due to factors such as numbers of workers or size of the contracts, to post notices of non-discrimination to workers, unions, and subcontractors, to include non-discrimination clauses within contracts, and to file compliance reports with the Labor Department.16 This Order directly influenced what explicitly became recognized as affirmative action during the Nixon administration. Based on Executive Order 11246 and a local plan originally introduced in 1967, the city of Philadelphia, in consultation with United States Department of Labor, adopted the aptly named Revised Philadelphia Plan on June 27, 1969. That plan not only prohibited government contractors from discriminating on the basis of race but also specifically required them to create goals for hiring African American employees in order to ameliorate systemic and historic discrimination practiced in certain trade unions. In August of 1969, President Nixon additionally issued Executive Order 11478, which required equal employment opportunity for federal employees to be achieved through a “continuing affirmative program in each executive department and agency.”17 These affirmative approaches to ensuring opportunities quickly spread to other cities and states. The U.S. Comptroller General initially issued a report indicating such plans violated Title VII of the Civil Rights Act of 1964, but President Nixon lobbied Congress to reject these findings.18 Additionally, the plans were presumed to be constitutional when the Supreme Court refused to grant certiorari to a Third Circuit case, holding that the Revised Philadelphia Plan neither violated the Title VII nor the Fifth Amendment Due Process Clause,19 and later upheld a program which reserved 50 percent of the openings in a training plan for African-Americans.20

Growing Pains: Affirmative Action Backlash in the Courts

The era of affirmative action programs being viewed as consistent with the constitutional protection of equality was decidedly short-lived. Less than 10 years after the implementation of the Revised Philadelphia Plan, a plurality opinion in Regents of the University of California v. Bakke signaled that the Court was loath to view affirmative action programs as restoring equality for minorities who had suffered past discrimination. Rather, such plans were instead considered as reverse discrimination against groups not favored by such programs.21 Bakke did not directly discuss government employment and contracting and only struck down the use of race-conscious quotas in higher education admissions. In fact, in the years immediately following the Bakke decision—in cases worth additionally noting because they did not employ strict scrutiny—the Court upheld two minority set-aside programs in employment.22 Within a decade after the Bakke decision, however, the understanding of remedial race-conscious set-asides as unconstitutional also invaded employment and contracting cases.

In a set of cases looking at affirmative action within the employment and government contracting arenas—Wygant v. Jackson Board of Education (1986),23 City of Richmond v. J.A. Croson Co. (1989),24 Adarand Construction v. Pena (1995)25 are most representative—the Supreme Court systematically exhibited hostility toward affirmative action by requiring strict scrutiny analysis for all government race classification cases, demanding a strong basis in evidence to justify remedial race-based decision-making, and adopting “colorblindness” as a prevailing perspective for analyzing Equal Protection claims.26

In Wygant, a plurality decision that addressed the constitutionality of a race-conscious layoff provision in a collective bargaining agreement, five Justices agreed that the provision violated the Equal Protection Clause. The case also produced five votes for a “strong basis in evidence” standard to justify the use of race-conscious remedies. Justice Powell, writing for the Court, also proposed that strict scrutiny apply to any governmental classification or preference based on racial or ethnic criteria.27 In the Croson case that followed, the Court adopted Justice Powell’s strict scrutiny suggestion, at least for racial classifications used by individual states.28 Much of the dicta in the opinion relied upon Powell’s Bakke opinion and suggested that racial classifications could unfairly burden Whites as well as minorities.29 Additionally, while the Court indicated that remedying specific past discrimination could be a compelling interest, it rejected general societal discrimination as sufficient to meet the test.30 Finally, in Adarand the Court struck down a federal government program that created financial incentives for general contractors to hire subcontractors who were “socially and economically disadvantaged.”31 For some subcontractors, establishing disadvantage included considerations of race.32 The Court essentially extended the approach from Croson of applying strict scrutiny to all state uses of racial classifications to the federal government.

Affirmative Action Backlash via Voter-led Initiatives

In addition to the aforementioned Court cases, the backlash against affirmative action expanded to include a series of states banning considerations of race in public education, employment, and contracting. The University of California Board of Regents was an early proponent of discontinuing considerations of minority status in education, eliminating affirmative action in higher education admissions in 1995. This policy shift was followed in the same year by then Governor Pete Wilson’s executive order eliminating affirmative action in state employment.33 In 1996, Proposition 209, which was approved by 54 percent of California voters, banned minority group considerations in public education, employment, and contracting through an amendment to the state Constitution.34 Styled as a civil rights initiative, Proposition 209 proclaimed that states shall “not discriminate against, or grant preferential treatment to” any person in employment, education, or contracting, based on “race, sex, color, ethnicity, or national origin.”35 The Proposition became a model for anti-affirmative action ballot initiatives in other states including Washington State’s Initiative 200, Nebraska’s Initiative 424, Amendment 46 in Colorado, and Proposal 2 in Michigan, all of which employed similarly universalist language.36 The proposals passed in each state but Colorado.37 While the Sixth Circuit Court of Appeals overturned Michigan’s law,38 the U.S. Supreme Court recently reversed the lower appellate court. Applying the so-called “political process” doctrine articulated in cases such as Reitman v. Mulkey,39 Hunter v. Erickson,40 and Washington v. Seattle School District No. 1,41—all of which had previously disallowed race-based discrimination in various segments of public life based on voter preferences—the Roberts Court determined that racial groups could not be presumed to share common political perspectives and that it would be risky for the Court to decide “the policy realms in which certain groups—groups defined by race—have a political interest.”42 Rather than seeing Proposal 2 and the resulting amendment to the Michigan Constitution as inflicting injury upon, or alienating minorities from the political process, the Court, instead, stated:

For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others.43

Based upon the Schuette holding, even if future federal courts uphold as constitutional state university policies that include race-conscious decision-making in admissions, voter initiatives may be used to overturn these policies. Given, however, that only a small number of states have passed such initiatives thus far, race-conscious admissions plans in education potentially remain viable as long as they otherwise comport with U.S. Supreme Court’s current standards for such programs, which are next discussed.

The Last Remaining Vestiges of Affirmative Action (For Now)

In Bakke, race-conscious set-asides in higher education admissions programs were held to violate the Equal Protection Clause, but 5 Justices also preserved the idea that because achieving diversity among the student body involved a compelling state interest, race could be considered as a “plus” factor in creating diversity in admissions.44 In Grutter v. Bollinger, a Justice O’Connor-led majority reaffirmed what has come to be referred to as “the diversity rationale” articulated in Bakke whilst upholding the constitutionality of a race-conscious admissions process at the University of Michigan Law School, which considered race as one factor in a highly individualized admissions process.45 In that decision, Justice O’Connor, however, also opined, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”46 Based on the Court’s opinion in Fisher v. University of Texas—another case involving race-conscious higher education admissions standards—it appears we may not have to wait until 2028 for a new determination on the efficacy of affirmative action. Although Fisher, itself, did not overrule Grutter or ban affirmative action in educational admissions, the Fisher majority refined Grutter’s meaning, both increasing the likelihood of Grutter being a less effective tool for protecting race-conscious admissions and of other such cases being appealed to the Court.

Fisher v. University of Texas and Affirmative Action—Missed Opportunities in Substance and Process

The facts of the Fisher case were fairly simple. In 2008, petitioner Abigail Fisher was denied admission to the University of Texas, Austin, through a two-pronged admissions system. The largest portion of Texas undergraduates is admitted via the race-neutral practice47 of taking the top 10 percent of Texas high school students. To ensure diversity, a smaller number of students (25 percent) are admitted via a race-conscious review.48 Although Fisher was admitted to another Texas campus and ultimately enrolled at Louisiana State University, she sued the University and school officials, alleging that the University’s use of a race-conscious system violated the Equal Protection Clause.49

The Fisher majority opinion was written, not surprisingly, by Justice Kennedy. What was surprising was that it was a 7–1 decision with only Justice Ginsburg dissenting, given the Court’s current thin conservative majority that often produces 5–4 decisions on cases involving hot-button social issues.50 With regard to affirmative action, in particular, opponents of affirmative action thought that there might be five votes in Fisher to overrule, or greatly narrow, Grutter v. Bollinger. Justices Scalia, Kennedy, and Thomas dissented in Grutter. Chief Justice Roberts wrote an opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1, which Justice Alito joined, which said that the Constitution requires the government to be colorblind and that rejected diversity in the classroom as a compelling government interest.51 Put another way, Justice Alito’s replacing Justice O’Connor, the author of the Court’s opinion in Grutter, led many to believe that there could be a majority to overrule Grutter.

Rather than substantially revisiting Grutter’s core points, seven justices voted to return the case to the Circuit Court for further proceedings. The scope of their decision, however, was very narrow. The Court focused its opinion on the lower court’s application of the narrow tailoring prong of strict scrutiny. The Court called for “careful judicial inquiry” into whether acceptable diversity could be achieved without using race, requiring courts to determine whether there were no race-neutral alternatives.52 With this focus, we next argue, the Court both ignored significant issues of process and substance. Specifically, we argue that based on precedent addressing remedies for denied University applicants, the Court should not have heard Fisher’s complaint, and that the majority, concurrences and dissent, failed to use the Fisher case as a meaningful opportunity to explicate Equal Protection Doctrine as a function of the lived experiences of racial minorities within this country.

Why Fisher Never Should have Been Heard: Precedent and Process Limits for Denied Applicants

It is absolutely clear that the Supreme Court never should have heard or decided Fisher because it lacked jurisdiction. It is not even a close question. In other affirmative action cases involving higher education, like Regents of the University of California v. Bakke and Grutter v. Bollinger, the plaintiffs were seeking injunctive and declaratory relief. But Abigail Fisher was not; since she graduated from Louisiana State University in 2012, she no longer had a claim for an injunction or a declaratory judgment. She had no desire to return to college. Her only remaining claim was for $100 in money damages, $50 for her application fee, and $50 for her housing deposit. Nor was this a class action suit or a suit with any other remaining plaintiffs.53

The problem was that the defendants named in the suit were the University of Texas, a state university, and its officers who were sued in their “official capacity.” The law is clear that the Eleventh Amendment and sovereign immunity bar suits for money damages against a state government or its officials who are sued in their official capacity for a constitutional violation.54 It is that clear and simple. No other defendants were named and those who were named could not be sued in federal court because of the Eleventh Amendment.

Moreover, it is questionable whether Fisher had standing to bring the claim. Her injury, a loss of money for the application and housing fee, was not caused by the University of Texas’ affirmative action plan. She surely would have applied anyway. In fact, in Texas v. Lesage, the Court expressly distinguished between an affirmative action case seeking an injunction, or prospective relief, as opposed to one seeking only money damages. The Court declared:

Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is the inability to compete on an equal footing. But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.55

In the federal district court, Texas demonstrated that Fisher would not have been accepted to the University even if she had a perfect Personal Achievement Score.

Put another way, standing to sue in federal court requires that a plaintiff allege and prove an injury that was caused by the unconstitutional policy. Abigail Fisher’s remaining injury for which she is suing is the loss of $100 in her application fee. That harm, however, was not caused by the University of Texas’ affirmative action plan. She surely would have applied to the school even if it did not exist.

It is puzzling that the University of Texas did not do more to emphasize this in its brief and argument to the Court. It is raised in a long footnote—footnote 7 on pages 16 and 17 of its brief to the Supreme Court. The footnote cites to an article by Adam Chandler that develops the jurisdictional points in detail.56 But that’s it. Of course, the Court is supposed to raise problems with jurisdiction, which include the Eleventh Amendment and standing, on its own. The Court didn’t even acknowledge these jurisdictional obstacles. It appears that its desire to decide the issue caused it to ignore that it was required to dismiss the case. One benefit of the Supreme Court returning the case to Fifth Circuit is that, perhaps, the jurisdictional issues will now be considered in earnest.

The Fisher Majority and Missed Opportunities for Addressing the Lived Experience of Race

Beyond narrowing how strict scrutiny is applied and ignoring procedural constraints, the Supreme Court repeatedly missed opportunities to challenge assumptions about race and its relevance to the everyday lives of applicants that are widely held by White people in our country. By so doing, the Court essentially defined the experiences of Whites in the United States as the normative standard by which all college and university applicants and thus all affirmative action programs should be evaluated. The end result? The Court both reinforced and fortified White privilege with the Fisher majority.

For example, while detailing its precedents in the affirmative action arena, the Court proffered a statement about “race” that tends to comport primarily with the actual lived experiences of Whites in our country. Specifically, the Court asserted:

Justice Powell’s central point … was that this interest in securing diversity’s benefits, although a permissible objective, is complex. “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element … To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” but instead 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.”57

Implicit in these statements is the notion that race does not play a defining role in the actual lives of university and college applicants. Such statements assume that race has no meaning in real life other than to work as a plus or minus during the admissions process. Indeed, these statements assume that race plays no role but the role that applicants and admissions officers choose to assign to it.

Yet, as Professors Michael Omi and Howard Winant convincingly reveal in their book Racial Formation in the United States: From the 1960s to the 1990s, “[f]rom the very inception of the Republic to the present moment, race has been a profound determinant of one’s political rights, one’s location in the labor market, and indeed one’s sense of ‘identity.’”58 In other words, race has never represented a mere decorative symbol for individuals in our society; instead, race has always carried with it real substantive consequences for the lives of people of color, who generally endure some form of racial subordination on a regular, if not everyday, basis. As Professors Richard Delgado and Jean Stefancic have pointed out, unlike for most Whites, who generally do not “have to think about race,”59 race and racism “[s]till, by every social indicator … continue […] to blight the lives of people of color, including holders of high-echelon jobs, even judges.”60 Indeed, for most people of color in the United States, particularly Black Americans and Latinos, race has involuntarily become a defining feature in their lives.61

For this reason, when the Court failed to acknowledge the real meaning of race, racism, and their consequences in the United States, it essentially solidified what Professors Devon Carbado and Cheryl Harris have identified as a racial preference in favor of Whites in the admissions game.62 After all, as Carbado and Harris pointed out in reference to the tasks of writing and evaluating personal admissions essays, to assume that race has no meaning or consequence in people’s lives and thus should not be a part of their applications unfairly assumes that one can intelligently speak of herself and her life without regard to race. While the requirement to completely avoid race in describing one’s self and one’s potential contributions to a school may make sense for most Whites, who, due to skin color, view and think of themselves as raceless,63 it makes little sense for people of color for whom race often plays a part in every social interaction.64 In sum, “the life story of many people—particularly with regard to describing disadvantage—simply does not make sense without reference to race.”65 When each of the opinions failed to acknowledge how race is a central and defining feature in the lives of many people of color, the Court accepted, without challenge, that a person of color can describe, explain, or make sense of his or her existence without any account of race and thus missed an opportunity to derail White privilege.

More than that, the Court missed an opportunity to highlight how failures to account for race in admissions evaluations can actually discount the actual achievements of a candidate of color in the admissions process.66

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