Constitution Daily

Smart conversation from the National Constitution Center

Town Hall: Chemerinsky and Clegg on Affirmative Action

June 24, 2013 by NCC Staff


The case of Fisher v. University of Texas was one of the most prominent and controversial issues in front of the Supreme Court this term. Now that the decision is in, you can get a brief analysis of its impact from two leading experts. Erwin Chemerinsky represents the American Constitution Society and Roger Clegg represents the Federalist Society. We are honored that both organizations are co-sponsoring this Town Hall debate with The National Constitution Center.

Chemerinsky and Clegg

Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law. Click here for more on Chemerinsky.

Clegg is President and General Counsel of the Center for Equal Opportunity. He focuses on legal issues arising from civil rights laws. Click here for more on Clegg.

We asked each expert to send us an opening statement that sums up their position on the long-term impact of the decision. You can read these statements below. Both Clegg and Chemerinsky will respond in detail to the points raised in the opening arguments.

We’d also like your comments below, in the area that allows you to comment using a Facebook account.

You can read the court's decision in the case at this link:

Opening statement from Chemerinsky:

Those who care about diversity in higher education can breathe a sigh of relief:  the Court did not end affirmative action nor significantly change the law with regard to the ability of colleges and universities to use race as a factor in admissions decisions.   Justice Kennedy's majority opinion, for a 7-1 Court, was explicit that it was not reconsidering Grutter v. Bollinger, which held that colleges and universities have a compelling interest in having a diverse student body and that they may use race as one factor among many in admissions decisions to benefit minorities and enhance diversity.

What is troubling is that the Court decided at all.  It clearly did not have jurisdiction.  Abigail Fisher's only remaining claim is for $100, her application fee; there is no longer a claim for injunctive or declaratory relief in the case.   The defendants were the University of Texas and the Texas Board of Regents being sued in their official capacity.  The law is absolutely clear that such suits for money damages are barred by the Eleventh Amendment.  Moreover, her injury, the loss of an application fee, was not caused by the affirmative action program so she lacks standing.   The case should have been dismissed on jurisdictional grounds.

Instead, the Court remanded the case to allow the United States Court of Appeals for the Fifth Circuit to decide whether Texas had shown that its affirmative action program was sufficiently narrowly tailored.  Justice Kennedy said that this requires that the University show that no race neutral alternative can achieve diversity and that the court should give no deference to the University of Texas.   In tone, this is different from Justice O'Connor's opinion in Grutter v. Bollinger, but in terms of the law it always has been established that strict scrutiny requires proof that no less discriminatory alternative can suffice.

The bottom line then is that colleges and universities can continue to engage in affirmative action, but they will need to show that such programs are necessary in order to achieve diversity.

Opening statement from Clegg:

In the short term, the case is a loss for the University of Texas and for supporters of racial preferences in university admissions, because a court of appeals ruling that upheld such discrimination has been vacated and remanded.  The Supreme Court said today that strict scrutiny means strict scrutiny, and that what the court of appeals did was not strict enough. Grutter had also been criticized as not being strict enough, and so today's decision amounts to a clarification of Grutter in that respect.

On remand, the High Court said the lower court "must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."  For the plaintiff, this will mean challenging the extent to which considering race adds a benefit, when weighed against its inevitable costs.  That is, if a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.  The Court said that there must be "a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications."  "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

In short, the struggle continues against racial preferences, with another Supreme Court decision that should be helpful.

Response from Chemerinsky:

Context is everything.   Mr. Clegg says that the case is "loss" for the University of Texas because the Fifth Circuit decision upholding its program has been vacated and remanded.   But the Supreme Court emphatically did not declare the University of Texas program unconstitutional.

The Court was clear that it was not reconsidering Grutter v. Bollinger and its holding that colleges and universities have a compelling interest in diversity and may use race as one factor in admissions decisions to benefit minorities.   This is crucial because so many predicted that the Court would overrule or significantly narrow Grutter and eliminate or greatly reduce the ability of colleges and universities to engage in affirmative action.   It didn't happen.

So my guess is that in this context the University of Texas is breathing a sigh of relief that its program still survives and those who support affirmative action hardly see the decision as a loss since it did not change the law or make it more difficult for colleges and universities to achieve diversity.   That may still come in the future, but it didn't happen today.

Response from Clegg:

Thanks, Erwin.  Well, the Court said that the reason it wasn't reconsidering Grutter was that the petitioner had not asked it to, so there is no reaffirmation of Grutter -- it is just taken as a given, as the Court says.

I certainly wish the Court HAD reconsidered and overturned Grutter, but it has left the door open to do that in some future cases; here's hoping it is asked to in that case.

The University of Texas is, no doubt, breathing a sigh of relief that it didn't lose outright before the Court, but it also did not get an affirmance of its win below.  It did not get executed, but it had gotten off scot-free while now it is back before the executioner.

I don't know what you mean exactly when you say that today's decision does not "make more difficult for colleges and universities to achieve diversity."  It certainly makes it more difficult for schools to justify the use of racial preferences.  Not as difficult as it should, but more difficult nonetheless.

Recent Stories On Affirmative Action

Constitution Check: Is “affirmative action” in constitutional trouble?

The long wait is over: The Supreme Court decides Fisher

Town Hall: McConnell and Rosen on Affirmative Action

Affirmative action: Timeline of 10 major cases and orders

Updated: Our Supreme Court scorecard

Sign up for our email newsletter