Robert Schapiro, dean and Asa Griggs Candler Professor of Law at Emory University School of Law, recently shared his views on the much-anticipated oral arguments in Fisher v. University of Texas, in which the U.S. Supreme Court will deal with the issue of affirmative action in college admissions.  

Q: Fisher v. University of Texas provides an opportunity for the Supreme Court to offer a new understanding of race and its permissible role in society. What do you consider the most significant feature of the case?

A: The most important aspect of the ruling may not be the holding of the Court, but the assumptions it makes in reaching its decision. A majority of the Court may for the first time assume that facially neutral plans designed to achieve a particular racial result differ fundamentally from plans that openly classify individuals on the basis of race. In other words, the Court may decide that a University seeking to achieve racial diversity must employ a plan that achieves its racial goals by indirect, rather than direct means.

Q: What might be the impact of such a ruling?

A: The impact will be extremely significant for public schools across the land and, perhaps, for private schools as well. Though private schools are not bound by the strictures of the United States Constitution, courts may adopt a similar interpretation of federal civil rights statutes, which do apply to private institutions. If the Court accepts the arguments of those challenging the University of Texas affirmative action plan, schools will scramble to achieve racial diversity by indirect means.

Q: What is an example of an indirect way of achieving racial diversity?

A: In the wake of a lower court decision in 1996 striking down UT's affirmative action program, Texas adopted a plan that guarantees admission to the University of Texas to all students who graduate in the top 10 percent of their high school class. Because of pervasive residential segregation in Texas, the top 10 percent plan had the effect of increasing diversity. However, the consequences were sometimes perverse.  The plan created an incentive for students to switch to less competitive high schools and ended up burdening students just outside the top 10 percent in academically gifted schools. The specific issue in Fisher is whether UT can augment its facially neutral "top 10 percent plan" with a more explicit consideration of race. 

Q: When did the University of Texas decide to augment its "top 10 percent plan"?  

A: In the Grutter v. Bollinger case in 2003, a bare majority of the United States Supreme Court upheld the use of race to enhance diversity in higher education. Following Grutter, UT decided to supplement the top 10 percent plan with a renewed consideration of race in admissions, as one factor among many. The plaintiff in the Fisher case asserts that the success of the top 10 percent plan demonstrates the lack of justification for a consideration of the race of individual applicants.  

From a larger perspective, though, the question is whether there is a meaningful difference between the two alternative ways of achieving diversity.  It has long been established constitutional doctrine that a facially neutral plan implemented for a racial purpose triggers strict constitutional review. To put it another way, if a state implemented a top 10 percent plan for the purpose of discriminating against a racial minority, it is crystal clear that the plan would be unconstitutional—just as unconstitutional as a plan that considered the race of individual applicants and refused admission to minority applicants. The key issue is the presence of a "discriminatory" purpose, not the method by which that purpose is effectuated.  

The Supreme Court has previously held that affirmative action plans trigger the same strict constitutional review. Affirmative action plans have been upheld because promoting racial diversity in higher education has been held to be a "compelling governmental interest" justifying the use of race. From this perspective, it would seem that the top 10 percent plan is just as objectionable as the explicit consideration of race:  both involve a racial purpose. If the one plan is constitutional, so is the other, and vice versa.

Q: Should it matter whether race is considered only when a plan is first devised, but not in individual cases? Is the visibility of the racial purpose significant?   

A: In an opinion in a 2007 case, Justice Anthony Kennedy, writing only for himself, suggested that this distinction is important. He differentiated between plans that are merely "race conscious" and those that classify individuals based on race. Presumably the top 10 percent plan would fit into the permissible "race conscious" category.

Apparently, Justice Kennedy thinks that the harm is greater when individuals are singled out for differential treatment. Under this theory, an individual who is denied admission to a university suffers less harm if the rejection is based on the applicant's living in a White neighborhood, rather than because the applicant is White. Just as importantly, Justice Kennedy believes that it should be the Court, rather than elected institutions, that assesses the relative nature of these harms.

In Fisher, we will learn if other Justices share Justice Kennedy's sentiments. If a majority strikes down the UT plan on the grounds that the top 10 percent plan renders unnecessary an express consideration of race, then Justice Kennedy's view will have effectively prevailed.

Q: What's the next step if the University of Texas plan is overturned?

A: If Fisher ends up validating the top 10 percent plan, a scramble will likely ensue in which institutions try to achieve a particular racial result, without classifying individuals based on race. Some schools will likely succeed in achieving diversity by indirect means, while others will fail. As in Texas, the consequences of such new plans may be far reaching, and the results are hard to predict.