How many minority students = a critical mass?
That’s a good exam question, but not one that advocates of race preferences in admissions have been able to answer, as I explained below in this article for The Weekly Standard. In 2003 Justice O’Connor said that schools may seek to enroll a “critical mass” of minority students. But she didn’t say what that term required, nor has any other Justice since then. Justice Scalia, ever the great wordsmith, used a dissenting opinion to refer to critical mass as “the mystical critical mass” and “the fabled critical mass.” Good adjectives for a slippery concept.
Fisher v. University of Texas at Austin is the affirmative action case that won’t go away. It’s been to the Supreme Court once and may return. It is a case that could well turn on a failure to define terms—“critical mass” being the critical term.
The path to Fisher, and thus to “critical mass,” starts with the Fourteenth Amendment, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The amendment thus forbids state action that treats people differently on account of their race. To guard against that, the Supreme Court has held that racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny”—the highest level there is—and pass constitutional muster only if they are necessary and “narrowly tailored to further a compelling government interest.”
The Court’s equal protection jurisprudence applies to the use of race in any public context. And its principles long ago were extended, in effect, to private institutions, including those of higher education, thus covering almost the entirety of that sector.
It was in that largely liberal world that educators, starting in the 1970s, crafted a “compelling interest” for competitive institutions seeking to justify using race to admit students who would not be accepted solely on the basis of their academic qualifications. Obtaining the educational benefits of a diverse student body is, they argued and the Supreme Court eventually agreed, a compelling interest that can support the use of race in admissions. Significantly, it is only in higher education that diversity can serve as a compelling interest.
Advocates of the diversity rationale have emphasized—and here I quote Justice Lewis Powell, from his influential opinion in the 1978 case of Regents of the University of California v. Bakke—that the student body diversity to be sought, and which is to produce those educational benefits, is not “simple ethnic diversity,” but one encompassing “a far broader array of qualifications and characteristics.” But despite that larger (and more diverse) understanding, racial and ethnic diversity remains a, perhaps even the, goal of most competitive schools, public and private alike. Writing for the Court in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor recognized as much: “As part of its goal of ‘assembling a class that is both exceptionally academically qualified and broadly diverse,’ the [University of Michigan] law school seeks to ‘enroll a critical mass of minority students.’ ”
That raises an obvious question: how to define this “part” of the diversity goal, this “critical mass of minority students.” It is the question at the heart of Fisher v. Texas.
The university’s flagship undergraduate school in Austin admits the majority of each freshman class through a race-neutral process and the balance through a separate process indistinguishable from that upheld in the Grutter case—a holistic, individualized review that considers race (African-American) and ethnicity (Hispanic). From the two sources—the one race-neutral, the other race-conscious—the school seeks to assemble a diverse student body that includes a critical mass of minority students.
In 2009 Abigail Fisher, a white applicant who was not admitted under the race-conscious admissions policy, sued the university, claiming she was discriminated against because of her race, in violation of the Fourteenth Amendment’s equal protection clause. Fisher lost in the district court and then in the U.S. Court of Appeals for the Fifth Circuit.
Fisher appealed her case to the Supreme Court, and in June of last year Justice Anthony Kennedy, writing for a seven-to-one majority, ruled that the Fifth Circuit had failed to apply the correct standard of strict scrutiny. In sum, the circuit hadn’t been strict enough in reviewing the university’s position; it was too deferential. The Supreme Court vacated the decision and sent the case back to the Fifth Circuit. Last month a three-judge panel issued a new decision in the case—one that again sided with the university against Fisher.
The panel, however, was not unanimous, as Judge Emilio Garza filed a dissent in which he challenged critical mass. Garza observed that UT Austin uses race to achieve the compelling interest of diversity, which it has articulated as including “a critical mass” of minority students. Under strict scrutiny, he continued, the Fifth Circuit must determine whether the university’s use of race is necessary and “narrowly tailored” to achieve the university’s stated goal (with narrow tailoring defined as a close “fit” between the goal of a critical mass of minority students and the use of race in admissions). For the court to perform its task, the university must clearly explain its goal, Garza wrote, and yet it has not done so: The university “has failed to define [critical mass] in any objective manner.”
The dictionary definition of mass most relevant in this context is “a large body of people,” with “large” being relative, of course, and “people,” again in context, being the minority students admitted. There would thus seem to be some connection between the university’s diversity goal of critical mass and its race-conscious admissions process. Yet UT Austin has not explained the relationship, wrote Garza.
Garza included a footnote reporting the testimony of an admissions officer asked to give an example in which race would have some impact on an applicant’s application. She replied that “it’s impossible to say . . . because it’s all contextual.” For Garza, the university “has obscured its use of race to the point that even its own officers cannot explain the impact of race on admission.”
As for the majority, Garza said it “entirely overlooks the University’s failure to define its ‘critical mass’ objective . . . repeatedly invoking the term critical mass without even questioning its definition.” Thus, for Garza, the majority had its own failure—that of not making “a meaningful inquiry into the nature of critical mass,” as he believed is required under Kennedy’s opinion for the Court in Fisher. Garza explained the fundamental importance of this failure:
We cannot undertake a rigorous ends-to-means narrow tailoring analysis . . . [nor] tell whether the admissions program closely ‘fits’ the university’s goal . . . [nor] determine whether considering race is necessary for the university to achieve [its diversity goal] or whether there are race-neutral alternatives, when it has not described what “critical mass” requires.
Garza isn’t the only judge dubious about critical mass. In his dissent in Grutter, Justice Antonin Scalia referred to it as “the mystical critical mass” and, no less skeptically, “the fabled critical mass.” And in the oral argument in Fisher, Chief Justice John Roberts as well as Justices Scalia, Samuel Alito, and Sonia Sotomayor asked questions designed to ascertain its meaning.
Notably, Justice Alito asked Fisher’s counsel, “[D]o you understand what the University of Texas thinks is the definition of a critical mass? Because I don’t.” And the chief justice asked UT Austin’s lawyer what the critical mass is that the university is “working toward,” only to be told, “We don’t have one.”
Later the chief returned to the subject: “I understand my job, under our precedents, [is] to determine if your use of race is narrowly tailored to a compelling interest. The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?”
Fisher has asked for a rehearing by the entire Fifth Circuit. But this is a case that should go to the Supreme Court. It is a case with two issues—whether the University of Texas at Austin illegally discriminated on the basis of race against Abigail Fisher, and whether the Fifth Circuit (again) failed to apply the correct standard of strict scrutiny, letting UT Austin off easy. Both issues involve critical mass, the term made so familiar by its frequent utterance—its meaning, however, still slippery.
