The Volokh Conspiracy

Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter -

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now -

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor...

Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is narrowly tailored to the goal of promoting educationally beneficial racial diversity if that goal depends on achieving a “critical mass” and the University “won’t tell me what the critical mass is.”

Solicitor General Donald Verrilli (who appeared in defense of the program) even seemed to disavow the whole idea of “critical mass” in an exchange with Justice Scalia, claiming that the concept was overblown and had unfortunately taken on a “life of its own in a way that’s not helpful.”

In fairness, to Garre and Verrilli, Grutter created a difficult dilemma for them by, on the one hand, endorsing the idea of “critical mass” but on the other forbidding schools to pursue any numerical goals. But, as Justice Scalia points out, “mass assumes numbers.” The “critical mass” idea also has other flaws, such as the fact that it could justify racial and ethnic preferences for a nearly infinite range of groups, including Russians, Swedes, and sometimes even white males.

It remains to be seen whether key swing voter Justice Kennedy is also willing to dump the “critical mass” idea, and if so what he would replace it with.

A final interesting aspect of the oral argument is that some of the liberal justices seem interested in dismissing the case because the plaintiff, Abigail Fisher, lacks standing due to the fact that she has already graduated from another university and might not have gotten into the University of Texas even if it did not have any racial preferences. The conservative justices, for their part, were hostile to this standing argument.

This continues what I have previously described as a breakdown of traditional ideological positions on standing issues. It used to be that conservative jurists tended to favor restrictive standing rules, while liberal ones took the opposite view. But both sides seem to be changing where they stand on standing:

Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view....

This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury...” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).

Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones....

Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

The Fisher case is further proof of my thesis. If, as expected, the Court concludes that Fisher does have standing, that would be a good result. For reasons I discussed in this post, restrictive standing requirements are not mandated by the Constitution.

From the transcript:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you’re saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences
JUSTICE KENNEDY: Well, that’s the necessary — that’s the necessary response to Justice Alito’s question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus -JUSTICE
KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that’s race.

UPDATE: To clarify, I’m not suggesting that UT lost the case because of this exchange, I’m suggesting that this exchange shows that UT lost the case.

I have little to add to my previously posted on thoughts on Fisher v. University of Texas, the major affirmative action case that the Supreme Court is about to hear. But here are some links to earlier posts on the subject that might interest readers who follow the issue.

Here is my initial post about the Fifth Circuit decision that the Supreme Court is now likely to overrule.

In this post, I explained why the Fisher case poses a stark conflict between the “diversity” and compensatory justice rationales for affirmative action, and why the former is extremely dubious. I also highlighted the Texas affirmative action program’s dubious treatment of Asian-American applicants.

In February, I described my fear that the Fisher case could turn out to be a Pyrrhic victory for affirmative action opponents if the Court ends up invalidating all or most explicit affirmative action, but endorses “race-neutral” subterfuges such as the Texas Ten Percent Plan, which are often worse than traditional affirmative action. Such an outcome is also likely to reduce the transparency of affirmative action policies, for reasons I discussed here.

Most recently, I described why the originalist case for affirmative action is a lot weaker than proponents believe.

Overall, I think the Court should probably strike down the Texas plan. But I have serious concerns about the reasoning that it might adopt in reaching that conclusion. And I do not believe that it should categorically forbid all affirmative action policies, especially those genuinely aimed at compensating victims of past racial injustice.

The Supreme Court is hearing oral arguments in the Fisher v. University of Texas case tomorrow morning, so I thought I would republish here the essay I wrote for Scotusblog a while back:

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 Texas.  Fisher 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.

I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government policies, and that the part of the Fourteenth Amendment which includes the Due Process Clause, the Equal Protection Clause and the Privileges or Immunities Clause), explicitly applies only to states.

Professor Amar rightly points out that the first sentence of Section 1 of the Amendment, which guarantees citizenship to all persons born or naturalized within the United States, applies to the federal government as well. I don’t deny this, and even added an update to my post, where I noted that “I have updated this post slightly to make clear that it is the text of Section 2 [I meant to say the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – [the first part of Section 1] which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.” My original post was badly worded on this point; and I also briefly conflated the second part of Section 1 with Section 2, which foolish error is explained but not excused by the fact that I was very tired at the time I wrote the update). But the update (which I first added before Professor Amar’s post went up) does make my position clear.

Amar and I therefore agree that the first sentence of Section 1 of the Amendment applies to the federal government, as also do some other parts of the Amendment, such as Section 3. We also seem to agree that the latter part of Section 1 – at least as an original matter – does not. Professor Amar appears to accept the latter in his earlier book, America’s Constitution: A Biography (pg. 382), though he does not reach a definitive conclusion.

Where we disagree is over the question of whether the Citizenship Clause of Section 1 banned racial discrimination by the federal government. In my view, at least as a matter of original meaning, it did not. Consider the fact that immediately before, during, and after the passage of the Amendment, the federal government engaged in extensive discrimination against African-Americans that few at the time thought was unconstitutional. For example, blacks were segregated in the US Army and Navy, and excluded from many officer positions. The Marine Corps completely excluded blacks until 1942. In addition, if Amar is right that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence,” then laws denying the vote to women were banned by the Fourteenth Amendment, and there was no need for the Nineteenth Amendment (which finally banned sex discrimination in this field over fifty years after the Fourteenth Amendment was enacted). Amar’s approach also renders much of [the latter part of Section 1] of the Amendment superfluous. If the Citizenship Clause Section 1 already bans racial and other status discrimination by state governments, there would be no need for [the] Equal Protection Clause, which bans state denial of “equal protection of the laws.”

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

It is true that the Civil Rights Act of 1866 was to a considerable extent a model for the Fourteenth Amendment. Section 2 [actually the latter part of Section 1] of the Amendment forbids racial discrimination by state governments of the sort banned by the 1866 Act. However, Section 1′s Citizenship Clause does not include any comparable restriction on racial discrimination by the federal government. And as the language of the Civil Rights Act shows, such a ban was not considered implicit in the grant of citizenship itself. It’s also worth noting that the Civil Rights Act of 1866 does not apply to all types of racial discrimination by government, but merely that which pertains to “laws and proceedings for the security of person and property.” It therefore did not apply to racial discrimination by state universities of the kind at issue in the affirmative action litigation that led to my original post.

The conventional wisdom in the nineteenth century was that citizenship status was very much compatible with various types of discrimination between citizens. Most jurists agreed, for example, that women’s citizenship status did not bar a variety of discriminatory legislation against them. Consider this passage from Justice Curtis’ dissent in Dred Scott, arguing against Chief Justice Taney’s claim that widespread discriminatory legislation against African-Americans proved that they could not be citizens:

It has been... objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its basis is that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen.... That this is not true under the Constitution of the United States seems to me clear.

A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization.... So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications.

The drafters of the Fourteenth Amendment also assumed that granting citizenship to African-Americans did not automatically entitle them to equal civil or political rights. That’s why they added the latter part of Section 1 to the Amendment, which prevents states from taking away those rights. And that’s why they later adopted the Fifteenth Amendment, which forbade racial discrimination in voting rights.

I should emphasize that both this post and the previous one only address the original meaning of the Fourteenth Amendment restricts racial discrimination by the federal government. I fully admit that there are many nonoriginalist arguments for applying the Amendment to the feds. I also believe that some types of racial discrimination by the federal government may be banned by other parts of the Constitution. For example, I think that imprisoning people without individualized due process merely because they belong to a particular racial group violates the Due Process Clause of the Fifth Amendment, which is why originalism cuts against the Supreme Court’s infamous decision upholding such detentions in Korematsu v. United States.

Finally, as regular VC readers know, I am no fan of unconstrained federal power. As I see it, an ideal Constitution would severely restrict and perhaps even categorically ban racial discrimination by the feds. But that’s not what the Fourteenth Amendment did, at least not originally.

UPDATE: Professor Amar has written that he may not have time to respond to our rebuttals to his posts within the week that he will be guest-blogging. I would therefore be happy to post any reply he might care to submit at a later date. Either way, I look forward to reading his book, which is likely to be a major contribution to constitutional scholarship on par with his pathbreaking earlier work.

UPDATE #2: In the original version of this post, I accidentally repeated my mistake from the previous post of writing “Section 2″ in places where I meant to refer to the latter part of Section 1. I have now noted and corrected those places.

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added].

Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted. Therefore, the framers and supporters of the amendment could well believe that the federal government had the power to enact racial preferences that would be banned by Amendment if adopted by the states. Nor were they completely unreasonable in accepting this double standard. The framers of the Amendment hoped that the federal government would continue to be controlled by (relatively) pro-black Republicans and therefore could be trusted with the power to use racial preferences. By contrast, they did not have similar faith in the states, particularly the southern states where most white voters were unrepentant ex-Confederates and supporters of slavery.

In addition, as co-blogger David Bernstein points out, the racial preferences adopted by the federal government in the Reconstruction era were intended to help alleviate the massive injustices inflicted on recently freed slaves. This compensatory justice rationale for racial preferences is far different from the “diversity” rationale offered by the University of Texas to justify its racial preferences. The diversity rationale has very different implications from the compensatory justice theory, and could potentially justify preferences for a wide range of groups. In the Texas case, as David notes, many of its beneficiaries are the children of recent Hispanic immigrants who never experienced the kind of large-scale systematic discrimination suffered by American-born blacks (to say nothing of that endured by one-time slaves in the 19th century). Even if the framers and ratifiers of the Fourteenth Amendment would have been willing to allow state governments to engage in compensatory justice preferences for African-Americans, it is highly unlikely that they would have endorsed diversity preferences. After all, the dominant ideology viewed cultural diversity with suspicion and pushed immigrants to assimilate as quickly as possible.

Moreover, it seems unlikely that the overwhelmingly white (and to a large extent, still racist) electorate of the 1860s would have supported ratification of the Amendment if they had thought that it allowed state governments to discriminate in favor of blacks and against whites, while forbidding the reverse. Today, the dominant version of originalist theory is “original meaning” originalism, which holds that the Constitution should be interpreted as understood by the general public or the ordinary reader at the time of enactment (as opposed to “original intent” – the understanding of the political elites who drafted the document). It is improbable that the average member of the general public who supported the Amendment understood it to mean that states were empowered to discriminate in favor of racial minorities in ways they could not discriminate in favor of whites.

The above does not prove that adherence to originalism requires judges to strike down all affirmative action preferences by state governments. But it does undercut the standard originalist case for them. At the very least, originalist judges would have to review such policies with considerable suspicion.

UPDATE: Co-blogger David Bernstein made some related points in this post. There is some important overlap between his argument and mine. But I have let this post stand nonetheless, because it also raises some points that David didn’t address.

UPDATE #2: I have updated this post slightly to make clear that it is the text of [the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – Section 1 which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.

UPDATE #3: In my previous update, I foolishly confused the text of the second sentence of Section 1 of the Amendment with Section 2. I apologize for this error, and have now corrected.

My contribution to Scotusblog’s symposium on Fisher v. Texas can be found here. An excerpt follows.

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....

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.)...

Fisher 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” [because Texas's matriculants were about 40% "minority" without racial preferences]; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.

....

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....

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.

....

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.... 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.

Affirmative action isn’t exactly an issue that brings people together across ideological lines. It’s a divider, not a uniter. But there is considerable cross-ideological agreement on one point: if we are going to have racial preferences for minorities, it’s better to be transparent about it. In the recent SCOTUSblog symposium on the upcoming Fisher v. University of Texas Supreme Court affirmative action case, both Vik Amar (a defender of affirmative action), and leading critics Rick Sander and Stuart Taylor seem to agree on this point. Amar points out that there is no good reason why opaque racial preferences should be considered more constitutionally permissible than transparent and clear ones, despite some previous Supreme Court decisions suggesting that possibility. Sander and Taylor are more unequivocal in advocating transparency:

The single most important step forward is to adopt a comprehensive system of disclosure. The Supreme Court could mandate that any university that wishes to take the race of students into account in admissions must make its system of preferences (including legacy and athletic preferences) and their consequences transparent both to applicants, to help them make more informed decisions, and to the public, so that researchers, legislators, the media, the courts, and all other citizens can evaluate the accuracy and completeness of the information provided to applicants.

Unfortunately, however, as Amar explains, the most likely outcome of this case is a decision that reduces transparency rather than increases it. That’s because key swing voter Justice Anthony Kennedy is likely to write an opinion striking down the University of Texas program in part because racial “diversity” is better attained through “race-neutral” mechanisms like the Texas ten percent plan, which requires state universities to automatically admit any Texas applicant who was in the top ten percent in their high school class. Although formally neutral, this plan and others like it were adopted for the specific purpose of changing the racial composition of university student bodies. Under this approach, universities are still adopting policies that deliberately favor some racial groups at the expense of others, but doing so in a less transparent way, where the magnitude and purpose of the preferences is harder to assess.

If this is the result of Fisher, it could well turn out to be a Pyrrhic victory for opponents of racial preferences in admissions. As I explained here, racial preferences will not disappear, and may not even diminish in magnitude. But they will become harder to detect and assess. Moreover, policies such as the ten percent plan have a variety of negative side-effects that are worse than those of traditional, explicit affirmative action.

Some conservative defenders of the ten percent plan nonetheless argue that it is morally superior to traditional affirmative action because it does not explicitly consider race as a factor in admission. However, this argument is dubious, for reasons I outlined in my very first post on the ten percent plan, back in 2006:

[I]f it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially “neutral” means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong [and unconstitutional] for the same reason that Jim Crow laws were wrong, then “facially neutral” affirmative action systems such as the Texas ten percent plan are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

I can understand an argument that consistently opposes all affirmative action on the grounds that the government should not be in the business of favoring some racial groups over others. That’s the position of conservative justices such as Scalia and Thomas. I can also understand the opposite point of view: that affirmative action is justified for the purpose of promoting racial justice or diversity: the long-held position of most liberals. The conservative and liberal justices disagree about the bottom line merits of affirmative action; but they agree that courts should not favor secretive affirmative action policies over transparent ones. By contrast, it’s hard to see much logic behind the view held by key Supreme Court swing voters over the years, such as Justices Lewis Powell, Sandra Day O’Connor, and now possibly Justice Kennedy: that affirmative action preferences are wrong and usually unconstitutional if the government is clear and transparent about what it is doing, but perfectly fine if the preference is pursued through facially “neutral” means, despite the fact that the latter are intended to achieve exactly the same sorts of racially motivated results as the former.

My own view on affirmative action is that I don’t think the Constitution categorically bars affirmative action policies intended to promote compensatory justice, while I am simultaneously much more skeptical of those justified on the basis of promoting “diversity.” But whatever the justification for affirmative action, if the practice is constitutionally permissible at all it is better that it be open and transparent.

UPDATE: In the original version of this post, I accidentally forgot to include a link to my 2006 post outlining the flaws of the Texas ten percent plan. That mistake has now been corrected.

Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas.  The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.

The oddity is that law schools already mostly use a rote admissions system.  The brief argues in its introduction as follows:

To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage.  Instead, following this Court’s guidance in  Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome.  A mechanical admissions process would render such criteria irrelevant.

The brief later elaborates on this point in great detail.  I really don’t know how Dorf and his co-authors can claim this.  It’s common knowledge that law school admissions at the vast majority of law schools comes down almost entirely to GPA and LSATs, with allowances for affirmative action preferences, relatives of generous alumni, and, at state universities, for politically connected applicants.  This was largely true even when I went to law school over twenty years ago, but concern over U.S. News rankings, which heavily weight GPA and LSAT, have made it even more so.

Let’s say you’re a Caucasian or Asian applicant to Podunk Law School, which is targeting a 162 LSAT and 3.5 GPA [update: Median, U.S. News only considers medians] this year.  You majored in Physics in Harvard, show great intellectual curiosity, worked at Los Alamos for five years doing top-secret research, grew up impoverished in Appalachia, and had a much better GPA toward the and of your college career than at the beginning.  Unfortunately, your LSAT score is only 160 and your GPA, though great for a Harvard Physics major, was only 3.27.

Meanwhile, your cousin is also applying to Podunk.  Her parents are rich, she attended a fancy private high school, she majored in Cultural Studies at a fourth-rate college,has  never has worked a day in her life, and never reads anything more intellectually serious than Cosmo.  But she managed to achieve a 3.52 GPA, and (with the help of Princeton Review and private tutoring) a 162 on her LSATs.

Your cousin is very likely getting in to Podunk, and you almost certainly are not.  I’m in no way defending this situation, which in fact is indefensible; but it’s the way it is.  (A few years back, Podunk would likely have offered you admission to its evening program, because U.S. News only counted full-time students, but that loophole has been closed.)

In fact, I thought the Supreme Court, if anything, got it backwards in Grutter and Gratz in approving Michigan Law School’s affirmative action policies, and invalidating the undergraduate preferences.  Law schools, even elite law schools like Michigan, generally don’t care about applicants’ athletic prowess, or musical talent, or anything beyond raw LSAT and GPA scores, making the claim  that their affirmative action programs are about “diversity” in the broad sense that Justice Powell intended in Bakke quite dubious.  By contrast, undergraduate schools really do strive to fill their sports teams and bands, nurture interesting but idiosyncratic individuals, get students from all over the country and the world, and so on, making their desire to also have racial diversity via affirmative action preferences seem much less likely to be based solely or primarily on non-diversity rationales the Supreme Court has found to be illicit.

In any event, the AALS brief describes an idealized law school admissions process that exists at few if any law schools (Yale, I think, has so many hyper-qualified applicants to choose from for its small class, and such an idiosyncratic process with significant faculty input, that it may come close).  Not surprisingly, the brief fails to cite any studies or data showing that law schools do, in fact,  consider “each applicant’s record holistically,” and I’m surprised that the AALS would put forth this idealized process as it were standard practice.  At best, the brief could honestly argue that an unfavorable decision in Fisher would prevent any law school that chose to deviate from the “rote” norm from doing so.

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici.  The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans.  The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief’s citations.  So let’s assume that not just the brief’s facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate.  It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation.  None of the legislation in question grants authority to states to engage in race-conscious legislation.  In Fisher the underlying issue is whether a state university may engage in race-conscious admissions.  The authors not only don’t defend, but don’t even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn’t think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered by any explicit equal protection guarantee of the sort contained in the Fourteenth Amendment.  So I think the brief makes a  provocative case that perhaps the federal government should be subject to more lenient standards of race neutrality than the states, an argument that the Supreme Court itself has adopted at times, but abandoned in the Adarand case.  And while it’s true that the Court now holds that all levels of government are subject to the same equal protection standard, the black letter law is that the federal government is subject to the Fourteenth Amendment’s standards, and not the states to whatever standard the federal government should theoretically be held too.

Second, it strikes me that if I were to find the brief persuasive on the Fourteenth Amendment issue, it would only persuade me that all levels of government may at times engage in race-conscious legislation on behalf of African Americans.  But in a state like Texas, with a much larger Hispanic population than black population, the primary beneficiaries of affirmative action preferences are Hispanics.  The authors provide no evidence that the Framers would have allowed race-conscious preferences for groups other than blacks (and indeed, I believe that Mexican-Americans, the primary Hispanic group in Texas, were (a) in any event considered “white” under federal law and that (b) they were nevertheless subject to federal discrimination, not federal favoritism, at the time the Fourteenth Amendment was being enacted).

More generally, most “minorities” in the United States are not African Americans, with Hispanics outnumbering blacks, plus an additional six percent Asian Americans (who don’t usually benefit from admissions preferences–quite the opposite–but who are eligible for many other affirmative action programs), plus another several million Native Americans.  Even among African Americans, a significant percentage of the beneficiaries of affirmative action programs, especially on university campuses, are blacks who were never subject to American slavery because they or their ancestors immigrated from Africa or the Caribbean long after the Civil War.

So the CAC brief may provide originalist evidence that the U.S. government should be given more leeway in regard to race-conscious policies than the states get, and, more generously, may provide originalist evidence that even the states may engage in race-conscious programs that benefit the descendants of American slaves.  But I’m not persuaded that it’s at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed “underrepresented”) and disfavoring Asian-Americans (who are deemed “overrepresented”).

UPDATE:  It’s also worth noting that many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach, in common with how preferences work in general,  is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent, solely because the former have Spanish-speaking ancestors.  (Indeed, the “diversity” rationale for affirmative action seems to demand such a policy. In Grutter, the district court found that Michigan L aw School gave preferences only Mexican American and mainland Puerto Ricans, but Michigan vigorously denied this, assumedly because it conflicted with the diversity rationale and suggested an illicit social justice rationale for its policies. Grutter’s attorneys didn’t pursue this point.)  So for the brief to be persuasive in defending UT’s policies, it seems to me it would need to persuade readers that the fact that the the Reconstruction Congress allowed for race-conscious federal legislation benefiting slaves and descendants of slaves somehow means that the same Congress would have endorsed state preferences based on linguistic heritage, regardless of race and regardless of whether the individuals received the preference or their ancestors had even been subject to de jure discrimination in the United States. That seem like quite a stretch.

A National Review Online article reports on a petition that the federal Minority Business Development Agency is considering. The petition, from the American-Arab Anti-Discrimination Committee, seeks discrimination in favor of Arab-Americans, in the form of a “formal designation of Arab-Americans as a minority group that is socially or economically disadvantaged pursuant to 15 CFR Part 1400,” which “would allow the members of this community to receive assistance from MBDA funded programs, such as the MBDA Business Center program.” The period for formal public comments closed in late June, but I don’t know when the MBDA is scheduled to render its decision.

To my surprise, it appears that Hasidic Jews are already the beneficiaries of such preferences, though my quick search couldn’t find any details on the basis for the MBDA’s decision to so discriminate in favor of a particular religious group. (For more on the similarities between race-/ethnicity-based preference programs and religion-based preference programs, see my Diversity, Race as Proxy, and Religion as Proxy article, though that is focused on preferences justified by supposed “diversity” concerns, as opposed to preferences justified by a supposed need to compensate for an identity group’s perceived “social[] or economic[] disadvantage.”)

The Chronicle of Higher Education reports that several Asian-American groups have filed an amicus brief opposing the University of Texas’ affirmative action program, which is being challenged in Fisher v. Texas, an important affirmative action case before the Supreme Court:

A brief filed Tuesday with the U.S. Supreme Court seeks to shake up the legal and political calculus of a case that could determine the constitutionality of programs in which colleges consider the race or ethnicity of applicants. In the brief, four Asian-American organizations call on the justices to bar all race-conscious admissions decisions, arguing that race-neutral policies are the only way for Asian-American applicants to get a fair shake.

Much of the discussion of the case has focused on policies that help black and Latino applicants. And the suit that has reached the U.S. Supreme Court was filed on behalf of a white woman, Abigail Fisher, who was rejected by the University of Texas at Austin.

But the new brief, along with one recently filed on behalf of Fisher, say that the policy at Texas and similar policies elsewhere hurt Asian-American applicants, not just white applicants. This view runs counter to the opinion of many Asian-American groups that have consistently backed affirmative action programs such as those in place at Texas....

The brief filed Tuesday on behalf of Asian-American groups Tuesday focused less on the Texas admissions policy than on the consideration of race generally in college admissions. “Admission to the nation’s top universities and colleges is a zero-sum proposition. As aspiring applicants capable of graduating from these institutions outnumber available seats, the utilization of race as a ‘plus factor’ for some inexorably applies race as a ‘minus factor’ against those on the other side of the equation. Particularly hard-hit are Asian-American students, who demonstrate academic excellence at disproportionately high rates but often find the value of their work discounted on account of either their race, or nebulous criteria alluding to it,” says the brief...

The brief focuses heavily on research studies such as the work that produced the 2009 book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life (Princeton University Press)....

The book suggested that private institutions essentially admit black students with SAT scores 310 points below those of comparable white students. And the book argued that Asian-American applicants need SAT scores 140 points higher than those of white students to stand the same chances of admission. The brief also quotes from accounts of guidance counselors and others (including this account in Inside Higher Ed) talking about widely held beliefs in high schools with many Asian-American students that they must have higher academic credentials than all others to gain admission to elite institutions...

The impact of Texas’ affirmative action policy on Asian-American applicants raises serious questions about what the purpose of affirmative action actually is. As I have pointed out previously, if the goal is compensatory justice for groups that have been victimized by government discrimination, Asian-Americans have a strong case for being included in the program, and certainly should not be victimized by it. If, as the University of Texas argues, the purpose is ensuring that each group has a “critical mass” large enough to promote educationally beneficial “diversity,” then it is hard to understand why the Texas policy extends affirmative preferences to Hispanics, but not Asians, even though the former have a much larger absolute presence at the school:

The brief filed on behalf of [plaintiff Abigail] Fisher does focus on Texas policies — and specifically their impact on Asian-American applicants. Texas has stated that it considers black and Latino students “under-represented” at the university, based in part on their proportions in the state population. And the Fisher brief considers that illegal.

“UT’s differing treatment of Asian Americans and other minorities based on each group’s proportion of Texas’s population illustrates why demographic balancing is constitutionally illegitimate.... UT gives no admissions preference to Asian Americans even though ‘the gross number of Hispanic students attending UT exceeds the gross number of Asian-American students attending UT.’ This differing treatment of racial minorities based solely on demographics provides clear evidence that UT’s conception of critical mass is not tethered to the ‘educational benefits of a diverse student body.’ UT has not (and indeed cannot) offer any coherent explanation for why fewer Asian Americans than Hispanics are needed to achieve the educational benefits of diversity.”

As I explain here, there is also no diversity-based reason to prefer Hispanics to a wide range of other groups that have lesser representation at UT, or to consider Asian-Americans as a single undifferentiated mass for diversity purposes:

“Asians” are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are “Europeans.” If diversity is really the goal, university administrators should do away with the artificial “Asian-American” category altogether and start considering each group separately. They should do the same for the many groups usually lumped together as “white” or “Hispanic.” A university that already has a critical mass of native-born-WASPS might well not have a critical mass of Utah Mormons or Eastern European immigrants.

The glaring inconsistencies in Texas’ affirmative action policy and others like it suggest that many universities are either operating an ethnic spoils system, trying to run a compensatory justice program under the guise of promoting diversity (while ignoring Chinese and Japanese-Americans’ powerful claims for compensation) in order to avoid running afoul of Supreme Court precedent, or some of both.

To avoid misunderstanding, I should reiterate that I have some sympathy for the compensatory justice rationale for affirmative action, and do not believe that such policies are categorically unconstitutional. I also have significant reservations about the Fisher case in particular. My general position is the exact opposite of current Supreme Court precedent, which holds that racial preferences can be used to promote “diversity” but not compensatory justice for minority groups that have been the victims of massive “societal” discrimination.

That said, many current affirmative action policies are a travesty from the standpoint of either compensatory justice or promoting diversity. The University of Texas policy is no exception.

UPDATE: Some have suggested to me that UT’s policy may also be motivated by a belief that GPA and test score admissions standards are more “culturally biased” against blacks and Hispanics than against Asians. To my knowledge, the University has not asserted any such justification for its policy of including blacks and Hispanics, but not Asian-Americans in its affirmative action program. In any event, it would be surprising if administrators really believed that the tests are more culturally biased against native-born blacks and Hispanics – including those from middle class backgrounds- than against recent Asian immigrants who come from very different cultures, and in some cases only recently became fluent in English.

I understand that Elizabeth Warren claims to have inspired the Occupy movement.

In that spirit, it’s worth noting that when the 99% living in the Boston area claim minority status for employment purposes based on family lore, an old photograph, and other dubious bases, they get fired. When the 1% do it, they get a bit of bad publicity.

At least one point of interest having nothing to do with Warren herself has arisen from the controversy over Massachusetts Senate candidate’s Elizabeth Warren’s dubious self-identification as “Native American”, and whether she so self-identified to position herself to be a beneficiary of affirmative action.

One of Warren’s defenders, a law professor at the University of Chicago, formerly of University of Texas, claims that as a long-time member of Texas’s hiring committee he knows that Texas (Warren’s first “big-name” law school job), like other top law schools, is completely uninterested for affirmative action purposes in Native American heritage. He added that co-blogger and Warren critic Todd Zywicki would have known this if Todd had “participated in hiring at an elite law school.”

The argument that elite schools don’t care about Native American ancestry, even if true (and my own guess is that this varies considerably depending on the circumstances at each school), doesn’t help Warren–until she “participated in hiring at an elite law school” she would also have been ignorant that claiming Native American status would not be helpful to her.

Moreover, from a non-insider’s perspective, there’s no reason to think it wouldn’t. I can’t think of any standard rationale for affirmative action, lawful or unlawful (redressing past wrongs done to historically aggrieved groups, creating role models, ensuring “diversity” of perspectives, boosting the prospects of marginalized communities, making sure white students get exposed to students of different cultures, etc.) that would cause a school like University of Texas to, for example, give plus to a well-to-do light-skinned Mexican-American of pure Spanish ancestry to become Hispanic admittee number 300 but not to a Native American living on the Navajo reservation in Arizona to become Native American admittee ten.

But the broader point is that this all led me to be curious as to whether UT Law School has given preferences in admissions to Native Americans, a fact I figured I could discover by rereading the Fifth Circuit’s opinion in Hopwood v. Texas, invalidating UT Law School’s affirmative action admissions program. It turns out that UT (unlike University of Michigan in the Grutter case) did not give preferences to Native Americans, but did give them to Hispanics. And as near as I can tell, the University of Texas-Austin undergraduate college, which is currently defending its affirmative action program before the Supreme Court in Fisher v. University of Texas, also gives preferences to African Americans and Hispanics, but not to Native Americans.

Again, none of the normal justifications for affirmative action would lead to, for example, the children of my Argentine immigrant friends of German, Italian, and Jewish descent getting affirmative action preferences, but a Hopi Indian not getting such preferences. Yet that apparently is what happens, and has happened, at UT Austin.

Of course, there aren’t many Native Americans in Texas (.7% of the population). But perhaps that’s the answer to the puzzle. Affirmative action is generally justified by reference to the African American experience (a justification I have some sympathy with), but if you are running a university in a state like Texas, where Hispanics are a huge political force (and 37% of the population), you need to throw them into the mix as well for political reasons (largely at the expense of Asian Americans, who are a much smaller percentage of the population). Native Americans, however, as a tiny percentage of the electorate, can be safely ignored.

UT’s program of preferences, then, starts to look less like a pure “diversity” program that would surely want to encourage Native American admissions, and more like a program with two goals: (a) satisfy the strongly felt need of all major universities to have a significant African American presence (the post-Grutter program at issue doubled the percentage of African American students from 3 to 6%), for political, public relations, and ideological reasons; and (b) try to bring Hispanic politicians and voters into the pro-affirmative action coalition by extending preferences to them (I don’t have the exact statistics handy, but iirc the percentage of Hispanic students rose by about 1/3 from a percentage that was already in the teens, with Hispanics benefiting more in absolute terms from preferences than do African Americans).

In other words, it looks like UT, at both the law school and the undergraduate level, has been running what amounts to an ethnic spoils system. This does not bode well for its prospects before the Supreme Court.

The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas.   The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney.  It’s hard to think of a legal team more able to defend the university’s program.  Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger.   (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.”  Some speculate her success in Grutter may have been a strike against her nomination.)

The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows.  The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible).  John Rosenberg comments:

Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.

UPDATE: Some in the comments have asked how this fee arrangement compares with other recent instances in which government entities have hired elite Supreme Court counsel.  I don’t know what’s typical, but there have been several reports about the fees states and other government actors have paid Paul Clement for his recent work.  For representing over two-dozen states in the 11th Circuit and Supreme Court Clement received a discounted fee of $250,000.  I have not found a direct report on the fees for defending Arizona’s immigration law, but according to these reports, these fees are being paid from an outside fund set up to raise money to defend the law.  And Clement’s work for the House of Representatives defending the Defense of Marriage Act in multiple cases pending in lower courts was initially capped at $500,000, but has since been raised to $750,000 and could go as high as $1.5 million.