Yesterday, a divided Fifth Circuit panel ruled that the Texas policy survives scrutiny even after the Supreme Court’s ruling in Fisher. I am still in China, and so will not have time to comment in detail for a while. For now, I will merely say that this is a victory for supporters of affirmative action in admissions. But the legal battle over this issue is likely to continue, as Fisher could well appeal to the en banc Fifth Circuit (which would allow all of that court’s judges to review the ruling of the three judge panel) and ultimately the Supreme Court.
I would add that I largely agree with Judge Emilio Garza’s powerful critique of the majority opinion in his dissent. In particular, he shows that the majority failed to apply the kind of nondeferential scrutiny that the Supreme Court’s ruling in Fisher requires. Here is a brief excerpt:
In vacating our previous opinion… the Supreme Court clarified the strict scrutiny standard as it applies to cases involving racial classifications in higher education admissions: Now, reviewing courts cannot defer to a state actor’s argument that its consideration of race is narrowly tailored to achieve its diversity goals…. Although the University has articulated its diversity goal as a “critical mass,” surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal— essentially, its ends remain unknown…..[T]o meet its narrow tailoring burden, the University must explain its goal to us in some meaningful way. We cannot undertake a rigorous ends-to-means narrow tailoring analysis when the University will not define the ends. We cannot tell whether the admissions program closely “fits” the University’s goal when it fails to objectively articulate its goal. Nor can we determine whether considering race is necessary for the University to achieve “critical mass,” or whether there are effective race-neutral alternatives, when it has not described
what “critical mass” requires.
The University’s failure to define its objectives with greater precision may be due to the fact that if achieving a “critical mass” of different groups for educational purposes were really the goal, it is hard to explain why it has racial preferences for African-Americans and Hispanics, but not for numerous other groups who can also contribute to diversity, but whose pre-preference numbers in the student body are much smaller. If applied consistently, the diversity rationale could justify preferences for a wide range of groups, including even some white males. Because it is limited to so few groups, Texas’ program looks more like an effort to promote compensatory justice for groups that have suffered a history of discrimination in the state than to promote diversity across the board.
As I have explained in the past, I am sympathetic to the idea that affirmative action programs may sometimes be constitutional when used to promote compensatory justice rather than diversity. Indeed, I believe the former rationale has far greater merit than the latter. But the Supreme Court has long endorsed the opposite position, and has generally permitted racial preferences in college admissions only for diversity purposes. Yesterday’s Fifth Circuit decision failed to properly apply the Supreme Court’s new, tougher strict scrutiny standard for such diversity preferences.
Much more can be said about the decision, and I hope to say some of it in later posts.
UPDATE: My wife Alison Somin, who is a special assistant/counsel at the US Commission on Civil Rights, makes some good points about the Fifth Circuit ruling here.