Last week, the U.S. Supreme Court heard oral argument in Fisher v. University of Texas, a case that presents the still-divisive question of what limits the Constitution places on the ability of state universities to give special consideration to race in admitting minority students. As expected, the Court appeared to be divided on ideological grounds, with the relatively liberal Justices (minus Justice Kagan, who is recused), sounding sympathetic to the university, and the conservative Justices sounding skeptical. And also as expected, Justice Anthony Kennedy appeared to be somewhere in the middle.
In the wake of any Supreme Court argument, it is tempting to try to guess the outcome, but I shall resist the temptation here. Although I am frequently asked by reporters to predict the vote of Justice Kennedy—for whom I was a law clerk over two decades ago—the truth is that I have no greater insight into how the Justice may vote than any other informed outside observer of the Court has.
Instead, in this column I shall turn my attention to how the Supreme Court’s liberals and conservatives alike have come to place excessive weight on the question of what constitutes a “critical mass” of minority students when considering the constitutional status of affirmative action.
The Origins of the “Critical Mass” Concept
As discussed at length in prior Verdict columns by Vikram Amar (most recently here) and myself (here), the Fisher case presents an opportunity for the Supreme Court to clarify, modify or perhaps even disavow its 2003 holding in Grutter v. Bollinger. In Grutter, the Court upheld the University of Michigan’s use of race in law school admissions because each application was considered holistically, with no fixed target or quota of admittees of any race, and no effort to reduce any applicant’s racial background to a precise number.
Grutter was also the first affirmative action case in the Supreme Court to discuss the notion of “critical mass.” The university argued that it was justified in giving a “plus” for racial minorities because, absent such a plus, its other admissions criteria would result in a class with very few members of particular under-represented groups, such as African Americans and Latinos. Race-neutral criteria would produce some such minority students, but so few that they would likely feel racially isolated.
Thus, the university argued in Grutter that by taking account of race, it aimed to ensure that its class included enough minority students so that there would be a diversity of views and backgrounds within the group of minority students. With a critical mass, the argument went, no one would feel like he or she was a token or representative of his or her group, and non-minority students would not assume that any particular minority student expressed the “minority viewpoint” on any particular issue.
The Critique of Critical Mass
A narrow majority in Grutter accepted the law school’s critical mass argument. The dissenting Justices, however, did not. Without stating whether they thought that critical mass was the sort of objective that justifies the use of a racial plus in admissions, the late Chief Justice Rehnquist wrote for the dissenters that the University of Michigan Law School was using critical mass as a cover for impermissible racial balancing.
How did he know? Rehnquist pointed to the fact that during the years in question, the law school admitted about fifteen Native Americans, about fifty Latinos and about a hundred African Americans. Yet if the law school were really pursuing a critical mass policy, it would have set the critical-mass figure for each group at roughly the same level. Its failure to do so, the dissenters said, reflected the fact that the law school was really only trying to make its admissions numbers correspond with the proportion of various minority groups in its applicant pool.
Justice Scalia, who joined the Grutter dissent, repeated the objection during last week’s Fisher argument. Critical mass, he said, should not depend on the number of applicants or the population of any particular minority group in the state in question. If it does, then, in Justice Scalia’s eyes, that only shows that the university is disguising an attempt at racial balancing under the cloak of a supposed concern for critical mass.
Is Justice Scalia right? Yes and no.
Justice Scalia is correct that critical mass should not depend on the applicant pool. If it takes fifty Latinos to constitute critical mass in some particular program, then it should take fifty African Americans, fifty Native Americans, and, indeed, fifty members of just about any group, to do the same for each of those respective groups.
But it does not follow that an affirmative action program that honestly pursues critical mass will never display substantial disparities based on the numbers of applicants of different groups. Those disparities may simply reflect the differences in the numbers of qualified applicants.
Consider the University of Michigan Law School data cited above. Suppose that the law school determined that, over the relevant period, it would take about a hundred members of each of several traditionally- disadvantaged groups to constitute critical mass. Because the applicant pool contained about twice as many qualified African Americans as Latinos, and contained substantially smaller numbers of Native Americans, the law school was able to achieve a critical mass for African Americans, while falling short of its critical mass goals for the other groups. The law school would prefer to enroll about a hundred of each group, but not at the cost of accepting applicants who lack the minimal qualifications.
This example shows how the pursuit of critical mass, subject to the constraints of the applicant pool, can produce admissions results that mirror the results that one would see in a program that sought to ensure that the admitted class was roughly reflective of the applicant pool. Thus, Chief Justice Rehnquist may not have been justified in accusing the University of Michigan Law School of not really caring about critical mass—and although Justice Scalia is right that, in theory, the applicant pool’s composition should not matter to the critical mass threshold, it in fact matters because universities care about academic qualifications, as well as critical mass.
The Critical Mass Catch-22
During the oral argument, both the lawyer for plaintiff Abigail Fisher and the conservative Justices who were sympathetic to her, leveled a further charge against the use of the critical mass concept by the University of Texas. They said that the university had failed to quantify a critical-mass threshold and was thus simply asking the courts to defer to its own unarticulated educational judgment. But doing so, the affirmative action skeptics implied, would reverse the usual rule that requires government institutions that use race to come forward with a compelling justification for doing so.
As Justice Sotomayor recognized in her questions, this accusation of vagueness was a trap for the university. Failure to quantify critical mass would leave the university open to the charge that it did not discharge its burden of proof. But if the university did quantify critical mass, then it would instead be accused of using a quota—which the Court’s affirmative action cases also forbid. Thus, although the concept of critical mass enabled the University of Michigan Law School’s affirmative action program to barely survive in 2003, it now appears that critical mass could become a Catch-22 for university administrators.
If so, that would hardly be surprising. The history of affirmative action in the United States has been largely a history of shifting rationales. Race-based affirmative action was originally championed by the Nixon Administration as a much cheaper alternative to the difficult work of addressing urban poverty and structural inequality. Meanwhile, support for affirmative action by liberals has always rested mostly on a remedial rationale, but the Supreme Court’s 1978 ruling in the Bakke case and other cases rejected the remedial defense of affirmative action except in the narrowest circumstances. Accordingly, since Bakke, in-court defenses of affirmative action have invoked the benefits of student-body diversity, and since Grutter, diversity itself has been glossed by critical mass.
Whether affirmative action survives the Fisher case remains to be seen, but if it does, it is a fair bet that the concept of critical mass will either be transformed into, or replaced by, some new and equally problematic account of the underlying goal. In this respect, the Supreme Court’s jurisprudence is itself both a product of, and a metaphor for, the country’s continuing difficulty in honestly discussing race.