FISHER v. UNIVERSITY OF TEXAS AT AUSTIN
631 F.3d 213 (2011)
United States Court of Appeals, Fifth Circuit.
January 18, 2011.
The Grutter majority asserts that "[s]trict scrutiny is not `strict in theory, but fatal in fact.'" 539 U.S. at 326, 123 S.Ct. 2325 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). But since the Court began applying strict scrutiny to review governmental uses of race in discriminating between citizens, the number of cases in which the Court has permitted such uses can be counted on one hand.1 The Court has rejected numerous intuitively appealing justifications offered for racial discrimination, such as remedying general societal discrimination, see Croson, 488 U.S. at 496-98, 109 S.Ct. 706 (plurality opinion); enhancing the number of minority professionals available to work in underserved minority communities, see Bakke, 438 U.S. at 310-11, 98 S.Ct. 2733 (opinion of Powell, J.); and providing role models for minority students, see Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275-76, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion). In all of these cases, the Court found that the policy goals offered were
insufficiently compelling to justify discrimination based on race.
In those rare cases where the use of race properly furthered a compelling state interest, the Court has emphasized that the means chosen must "work the least harm possible," Bakke, 438 U.S. at 308, 98 S.Ct. 2733 (opinion of Powell, J.), and be narrowly tailored to fit the interest "with greater precision than any alternative means." Grutter, 539 U.S. at 379, 123 S.Ct. 2325 (Rehnquist, C.J., dissenting) (quotation omitted). Moreover, the failure to consider available race-neutral alternatives and employ them if efficacious would cause a program to fail strict scrutiny. See Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842 (plurality opinion) (the "term `narrowly tailored' ... requires consideration of whether lawful alternative and less restrictive means could have been used."); see also Adarand, 515 U.S. at 237-38, 115 S.Ct. 2097; Croson, 488 U.S. at 507, 109 S.Ct. 706; Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting) ("Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification."). Beyond the use of race-neutral alternatives, the Court, pre-Grutter, had considered several other factors in determining whether race-conscious programs were narrowly tailored. Programs employing a quota system would fail this inquiry, as would programs of unlimited duration. See Bakke, 438 U.S. at 315-18, 98 S.Ct. 2733; Croson, 488 U.S. at 498, 109 S.Ct. 706. The Court looked to a program's flexibility and its capacity for individualized consideration. See United States v. Paradise, 480 U.S. 149, 177, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (plurality opinion); Croson, 488 U.S. at 508, 109 S.Ct. 706. The Court also considered the relationship between the numerical goal and the percentage of minority group members in the relevant population, and whether the means chosen were likely to be overinclusive. See Croson, 488 U.S. at 506-10, 109 S.Ct. 706. Finally, the Court considered the program's burden on innocent third parties. See, e.g., Metro Broad., Inc. v. FCC, 497 U.S. 547, 630, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting) (programs should not "unduly burden individuals who are not members of the favored racial and ethnic groups"); Bakke, 438 U.S. at 308, 98 S.Ct. 2733 (opinion of Powell, J.). Grutter changed this. After finding that racial diversity at the University of Michigan Law School ("Law School") was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387, 123 S.Ct. 2325 (Kennedy, J., dissenting) ("The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents."); see generally Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring's conventional "least restrictive means" requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny. Courts now simply assume, in the absence of evidence to the contrary, that university administrators have acted in good faith in pursuing racial diversity, and courts are required to defer to their educational judgments on how best to achieve it. Grutter, 539 U.S. at 328-29, 123 S.Ct. 2325. What is more, the deference called for in Grutter seems to allow universities, rather than the courts, to determine when the use of racial preferences is no longer compelling. See id. at 343, 123 S.Ct. 2325 ("We take the Law School at its word that it would `like nothing better than to find a race-neutral B
admissions formula' and will terminate its race-conscious admissions program as soon as practicable."). This new species of strict scrutiny ensures that only those admissions programs employing the most heavy-handed racial preferences, and those programs foolish enough to maintain and provide conclusive data, will be subject to "exacting judicial examination." Miller, 515 U.S. at 904, 115 S.Ct. 2475. Others, like the University of Michigan in Grutter, and the University of Texas here, can get away with something less.
Setting aside for a moment Grutter's finding that racial diversity within the Law School was a compelling state interest, see infra Sections I.D and III, I find troubling the Court's treatment of whether the Law School's chosen means—using race as a "plus" factor—was narrowly tailored to achieving that end. The Court discussed five hallmarks of a narrowly tailored race-conscious admissions program in answering this question: (1) the absence of quotas; (2) a program that does not unduly harm any racial group; (3) serious, good-faith consideration of race-neutral alternatives; (4) a program that contains a sunset provision or some logical end point; and (5) individualized consideration of all applicants. See 539 U.S. at 335-43, 123 S.Ct. 2325. The Court's opinion effectively emptied at least three of these criteria of their probative content, leaving the first and fifth as determinative in any narrow tailoring inquiry. See Ayres & Foster, 85 TEX. L. REV. at 543.