The Misleading Administration Guidance on Affirmative Action

The U.S. Departments of Education and Justice released a letter to college and university presidents on Friday about the legality of affirmative action. It suggests that the U.S. Supreme Court’s June 2013 decision in Fisher v. University of Texas simply reaffirmed the Supreme Court’s 2003 ruling in Grutter v. Bollinger—a reading at odds with those of many higher-education lawyers.

In Grutter, the court upheld the University of Michigan Law School’s use of race in admissions and gave universities considerable deference on the question of whether “race-neutral alternatives,” such as socioeconomic affirmative action, could produce sufficient racial diversity, rendering the use of race unnecessary and illegal. In Fisher, by contrast, the court vacated a lower-court decision vindicating affirmative action, and remanded the case, outlining a new requirement that universities be given “no deference” on such questions as whether race-neutral strategies will suffice.

This issue is important because while universities routinely claim that they need to use race because alternatives will not produce racial diversity, considerable research suggests that contention is inaccurate. For example, in a 2012 analysis, my colleague Halley Potter and I found that in seven of 10 leading universities where the use of race had been banned (usually because of voter initiatives), an array of alternatives were able to maintain or increase both black and Latino representation.

Those alternatives include giving a leg up to economically disadvantaged students of all races, admitting students at the tops of their high-school classes irrespective of standardized-test scores, increasing financial aid, improving opportunities for students to transfer from community college, and eliminating legacy preferences for the children of alumni.

Yet in a forum on Friday morning, the U.S. Department of Education’s assistant secretary for civil rights, Catherine E. Lhamon, said there was “no difference in content” between the Fisher and Grutter decisions. The letter to university leaders indicates that 2011 documents providing federal guidance on how to use race in education, issued before the Fisher decision, “remain in effect” without any alteration.

This reading of the two Supreme Court cases as essentially identical would presumably be surprising to the justices of the court. Five Supreme Court justices participated in both Grutter and Fisher, yet four of them switched sides in the two cases. Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas dissented in Grutter, in part because universities were not made to demonstrate that race-neutral strategies were insufficient to produce racial diversity, yet those justices were in the majority in Fisher.

Meanwhile, Justice Ruth Bader Ginsburg switched in the other direction, from the majority in Grutter to the dissent in Fisher. Her dissent complained that the majority would push universities to adopt race-neutral strategies like Texas’ top 10-percent plan, which she viewed as disingenuous. (Justice Stephen G. Breyer, alone, was in the majority in both cases.)

Did Kennedy, Scalia, Thomas, and Ginsburg get confused and not realize—as the Departments of Justice and Education contend—that the two holdings were really the same? That seems unlikely.

Justice Kennedy dissented in Grutter in part because he said the majority opinion, written by Justice Sandra Day O’Connor, gave a free pass to universities in denying that alternatives, like socioeconomic affirmative action, could achieve sufficient racial diversity indirectly. In Grutter, O’Connor said, “We take the law school at its word that it would ‘like nothing better than to find a race-neutral admission formula’ and will terminate its race-conscious admissions program as soon as practicable.”

Kennedy thought that was the wrong approach. He wrote that judges should “force institutions to seriously explore race-neutral alternatives” rather than being “satisfied by the law school’s profession of its own good faith.” Kennedy objected to the fact that Grutter’s application of the “strict scrutiny” standard for judging racial classifications had been watered down.

Ten years later, Kennedy was in the driver’s seat and was able to write his dissenting opinion in Grutter into the majority opinion in Fisher. His 7-to-1 opinion for the court held that “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

Whereas Grutter took universities at their word, Kennedy wrote in Fisher that “the university receives no deference.” In contrast to Grutter’s diluted version of strict scrutiny, Kennedy wrote, “Strict scrutiny must not be strict in theory but feeble in fact.”

The Obama administration’s letter to university and college presidents is problematic for two reasons. First, its upbeat and optimistic message about Fisher—like a cop at the scene of an accident saying “move along, folks, nothing to see here”—could expose universities to litigation. Indeed, the message of the administration might provoke the Supreme Court to revisit the issue sooner than later.

But more important, it will give universities the green light to do what they’ve done all along—take the easy way out and use racial preferences to recruit predominantly middle- and upper-class students of color, rather than engaging in the hard work of recruiting, admitting, and paying for the education of economically disadvantaged students of all races.

For an administration led by a president who says he wants to jump-start social mobility, the Education and Justice Department’s message is particularly disappointing.

Richard D. Kahlenberg is a senior fellow at the Century Foundation.

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