JURIST Associate Editor Fangxing Li, University of Pittsburgh School of Law Class of 2014, explores the upcoming US Supreme Court decision on affirmative action policies in institutions of higher education and argues that these policies harm rather than help diversity in schools that employ those policies...

The current debate on affirmative action is whether the Court should overrule Grutter v. Bollinger, the most recent landmark case that provided the jurisprudence supporting higher education institutions' affirmative actions when the schools have a compelling interest in attaining a racially-diverse student body that can pass the most rigorous strict scrutiny test on race-based admission process, and when their holistic reviews of applications are narrowly tailored to further the compelling governmental interest.

The Equal Protection Clause of the Fourteenth Amendment of the US Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

Justice Powell, in his touchstone opinion in Regents of the University of California v. Bakke, characterized the interests of remedying past discrimination and racial balancing as not compelling and left only the interest of attaining a diversity student body as legitimate aim that survived strict scrutiny. He therefore struck down a medical school's admission policy that reserved 16 out of 100 seats for students of certain minority groups. The interest, in Justice Powell's view, is not a simple one with statistical ethnic diversity but embraces "a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Twenty-five years later, the Court reviewed University of Michigan Law School's admission procedure in Grutter and upheld its constitutionality on the ground that its consideration of race was lawful when the interest of diversity by aiming at enrolling a "critical mass" of minority students was a compelling state interest that could justify the use of race in university admissions. Justice O'Connor explained that critical mass must be "defined by reference to the educational benefits that diversity is designed to produce," and the Court was to give a degree of deference to a university's academic decisions within constitutionally prescribed limits." However, the idea of "critical mass" was largely overshadowed by Chief Justice Rehnquist's dissent that the term should be interpreted only as a proportion of the student body, or in other words, a disguised label of quota, that was strictly rejected by the Bakke Court, and the Court's "application of [the strict scrutiny] review is unprecedented in its deference."

In the current Fisher case, The University of Texas (UT) observed that there are "underrepresented" minorities based on a comparison between the undergraduate student body and the state's population, and there were some other racial groups that were overrepresented. For instance, Hispanic enrollment was less than two-thirds of the Hispanic percentage of Texas' population and African-American enrollment was only half of the African-American percentage of Texas' population, whereas Asian-American enrollment was more than five times the Asian-American percentage of Texas' population. In 2004, for example, Asian-Americans comprised about three percent of the population in Texas, yet accounted for 18 percent of UT's freshman class.

However, isn't true diversity found only at the individual level and created by individual differences in ability, experience, interest, opinion and other personal qualities, judged without resort to the invidious short cut of racial stereotyping? Student body diversity is an educational interest but never a representational one. A lack of proportional representation could never justify racial preferences. Diversity may help with classroom discussion, preparation for the real life diverse working environment and achieving the "one Nation" dream. It calls for students of different backgrounds, experiences, majors, socio-economic statuses and other indexes that can help the school achieve these educational benefits. However, UT is simply differentiating students by their race to bring UT's student-body demographics in line with the racial demographics of the state. Simply admitting more minority students will not benefit diversity, and the true diversity cannot be explained purely by the color of students' skin. UT's effort of characterizing minority groups as "underrepresented" and "overrepresented" is a disguised racial balancing approach in that its only purpose is to have "some specified percentage of a particular group merely because of its race or ethnic origin", an idea that was clearly rejected by Bakke. UT's use of race in admissions does not favor, and actually discriminates against other groups. It is not clear why fewer members of one group than another be needed to achieve the educational benefits of diversity.

Furthermore, even assuming that race was a decisive factor in the admission process, UT's use of race still could only have added, at most, 58 African-American and 158 Hispanic students to an in-state class of 6,322. In other words, the race-conscious policy would have only admitted 0.92 percent and 2.5 percent, respectively, of the whole student body enrolled in the in-state freshman class. The 2.7 percent difference, or 33 additional students, between 2004 and 2008 would be the only affected number by race [PDF], if race were determinative of their admission. Diversity would never be achieved by such a negligible effect produced by the race-conscious mean in the huge size of student body. This is not even close to a "narrowly tailored" mean to achieve the richly diverse student body.

Moreover, the "critical mass" test in Grutter is flawed. Justice O'Connor refused to tie the concept of "critical mass" to any fixed number. Rather, she suggested that critical mass meant a "meaningful numbers" or "meaningful representation" that will encourage underrepresented minority students to participate in the classroom and allow them to not feel isolated. But the definition itself does not provide any meaningful guide that helps school define what is the real critical line but rather create ambiguity that may lead to floods of litigation. Any percentage of minorities, either published or unpublished, is defined by the school. The criteria that are used to examine whether the goals such as "minorities not feeling isolated, adequate class interaction and students critical thinking" were achieved can by no means be proved or disproved. What's more, Grutter simply gave deference to the university and concluded that its use of race was constitutional as long as there was no specific percentage of minority enrollments under the critical mass, and the school might have an unspecified number although it is inherently similar to quota, an idea expressly rejected in Bakke.

Justice Scalia depicted the critical mass justification for its discrimination race challenges as a "sham to cover the scheme of racially proportionate admissions." How can a vague, self-contradicted and unsuccessful test provide any helpful guidance to schools? By the way, is it really a strict scrutiny? Under Grutter's jurisprudence, as long as a school imitates the University of Michigan's admission process by articulating its purpose to reach diversity to the level of "critical mass" and the school considers race in a holistic and individualized manner, it will survive the strict scrutiny test. Grutter's lenient use of strict scrutiny and unprecedented deference is never seen in the Court's history.

The US was founded on the principle that "all Men are created equal." "All Men" now mean all human beings—men, women and all ethnicities. We have seen the worst times of discrimination with "separate but equal" policies that established that ethnic minorities were inherently unequal to white Americans. To redress past evil, the Court sustained the interest of "remedying the past wrong." However, race is corrosive to human dignity and the fundamental value of individual rights under our Constitution. Our dream is to create "a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement." Affirmative action, with no doubt, violates this fundamental principle. Any further use of race will detrimentally harm innocent citizens.

Race is an immutable character trait with which people are born naturally. With internationalization, more and more people choose to marry with members of other racial or ethnic groups, and there is no way to characterize others as purely Caucasians, Asians or African-Americans. As Justice Kennedy concurred in Parents
Involved v. Seattle School District No.1, "[w]hen the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite?" In Plessy, this Court held that a 7/8 white passenger should be denied use of public facility on account of the statute that was discriminating against blacks. Recently, a driver sued NASCAR because he believed that NASCAR denied him because he did not fit the purpose of the affirmative action program because he looked like a Caucasian male.

Now, what if a half-Asian half-African American applies to UT, should she be favored or disfavored? Does a 1/16 African-American who looks white fit for the protected targets under affirmative action? What about 1/64? 1/128? Are we really distinguishing people under their color of skin, and under what ground can that be justified?

"Programs should also not unduly burden individuals who are not members of the favored racial and ethnic groups." Now the net penalty [PDF] for Asian-Americans under those race-based diversity programs was 280 SAT points relative to African Americans and 235 to Hispanic applicants. Is this penalty minimal and can it be ignored?

Due to the discriminating admission policy, many Chinese-American children have become ashamed [PDF] of their ethnic heritage after concluding that their unfair denial is a form of punishment for doing something wrong and are thus unwilling to state their race at all on college applications or self-identify with their non-Asian parents. It is absurd to punish those people under the disguise of affirmative action. Classifications based on race carry a danger of stigmatic harm, may promote notions of racial inferiority and threaten to incite racial hostility. It is not our Nation's wish to send to any racial group message that they are not part of it.

The racial diversity is also not justified in that it is too over-inclusive as it does not distinguish different racial groups. For example, Asian-Americans incorporate Chinese, Japanese, Korean, Vietnamese, Indian and others. These racial groups have very different backgrounds, languages, cultures and perspectives, and their viewpoints are highly diverse. The compelling interest of government is "true diversity," which is based on students' distinct socio-economic status of their family, languages other than English spoken at home, a single-parent household, different sexual orientations and others rather than the color of their skin.

Race-conscious admission process also might detrimentally affect certain protected minority students [PDF]. People may tend to work or study with others who share equality of status, or, put in the context in the instant case, who are admitted by the regular means rather than benefiting from other aspects rather than grades. Whites and Asians may express considerable "social distance" from African Americans and Hispanics who benefited from affirmative action because of their lower standardized test scores, and thus to every African American or Hispanic who does not benefit from affirmative action. African Americans may tend to self-segregate and some African Americans or Hispanics, such as the ones who were not admitted because of affirmative action, may undergo unfair disrespect.

What still echoes is Justice Harlan's notable dissent in Plessy: "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Justice O'Connor's expectation that 25 years from then the end of use would come is only a pure speculation, and it is now time to act.

Fangxing Li majored in Economics at China University of Political Science and Law. He worked as a law clerk for Judge Patricia A. McCullough, and he is involved with the Pitt Law Asian Lawyer Association.

Suggested citation: Fangxing Li, Looking into Affirmative Action through Fisher v. University of Texas at Austin, JURIST - Dateline, May 17, 2013, http://jurist.org/dateline/2013/05/fangxing-li-affirmative-action.php.