Fisher, the Texas Ten Percent Plan, and “Race-Neutral” Alternatives to Affirmative Action

When it was litigated in the lower courts, most observers thought that the most distinctive aspect of Fisher v. University of Texas is that the racial preferences used in its affirmative action plan were grafted on top of the Texas Ten Percent Plan, which guarantees any Texan admission to the UT so long as they were in the top ten percent of their high school class. This plan ensured that the university had a large number of black and Hispanic students, because many high schools are overwhelmingly minority. While formally “race neutral” the Ten Percent Plan was clearly enacted by the state legislature for the purpose of increasing the percentage of African-American and Hispanic students after the Fifth Circuit court of appeals struck down the University of Texas’ affirmative action program in the 1996 Hopwood case. Before the Supreme Court decided Fisher, I worried that it would validate the Ten Percent Plan in the process of striking down the additional preferences placed on top of it. For reasons I discussed here, the Ten Percent Plan is not really race neutral, and is in many ways worse than conventional affirmative action programs.

Today’s Supreme Court majority opinion does not directly address the question of whether the Ten Percent Plan is genuinely race neutral or not. Justice Kennedy emphasizes that:

Narrow tailoring…. requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…, [which] involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications….The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have invalidated facially neutral laws that were clearly intended to benefit one particular racial group over another. These included facially neutral literacy tests and poll taxes intended to reduce the percentage of blacks who can vote. Such laws are considered racially discriminatory even though they don’t mention race in their text. Does the same standard apply to policies intended to increase the proportion of black or Hispanic students at universities? For now, at least, the Court does not say.

On the other hand, the sole dissenter, Justice Ruth Bader Ginsburg, did make clear her view that the Ten Percent plan is not race-neutral:

Ginsburg drew some laughter in the courtroom Monday when she said those who consider the 10-percent system “race-neutral” are kidding themselves.

“But for de facto racial segregation in Texas’ neighborhoods and schools, there would be no ‘top 10 percent’ law,” she said, before reading a quote from Harvard law professor Thomas Reed Powell.

“If you think that you can think about a think inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind,” Powell said, prompting Ginsburg to add, “Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

I think Ginsburg is absolutely correct on this point, though we disagree about its implications. In Ginsburg’s view, the courts should take a relatively deferential approach to both the Ten Percent Plan and conventional affirmative action program. I agree that the two should be evaluated under the same standards, but believe they should be subjected to tougher scrutiny than Ginsburg would require.

Future litigation is likely to focus on the issue of what counts as a genuinely “race-neutral” admissions program. Because today’s decision makes it harder for universities to use racial preferences for affirmative action purposes, much will turn on this determination. As Ginsburg puts it in her dissenting opinion, “[I]f universities cannot explicitly include race as a factor [in admissions decisions], many may ‘resort to camouflage’ to ‘maintain their minority enrollment.’” Does such “camouflage” make racially motivated admissions policies “race-neutral”? Ginsburg thinks not, and I agree. Whether other judges adopt the same view remains to be seen.