In Defense of Deference: The Case for Respecting Educational Autonomy and Expert Judgments in Fisher v. Texas

Abstract

Less than a decade after deciding Grutter v. Bollinger, the Supreme Court will return to the contentious debate regarding race-based affirmative action when it considers the plan challenged in Fisher v. University of Texas. Although modeled after Grutter, an examination of the plan’s constitutionality is potentially complicated by the operation of the Texas Top Ten Percent Plan — an arguably effective race-neutral alternative. Central to the Court’s inquiry will be its willingness, or lack thereof, to respect UT’s assessment that despite the gains in diversity achieved by the Ten Percent Plan, the consideration of race in admissions decisions continues to be necessary to achieve its academic mission and goals. This article urges the Court to respect educators’ good faith decision making, particularly when it involves the development of academic missions as well as the measures needed to accomplish them. Failure to do so would undermine the Court’s prior practice of respecting educators’ autonomy as well as the Court’s call for restrained judicial involvement in complex, educational decision making. The article begins with an examination of the challenged plan as well as the Fifth Circuit’s opinions upholding the plan’s constitutionality. Following this examination, the article challenges the contention that deferring to educators’ race-based decision making “represents a digression in the course of constitutional law.” It argues that when properly viewed as a means by which to inform rather than to weaken a strict scrutiny inquiry, deference is an appropriate principle to apply when examining the constitutionality of race-based admissions plans such as that employed in Fisher. In light of the expertise and knowledge needed to craft and implement effective measures to carry out a university’s educational mission, the article urges the Court to defer to the University’s judgments concerning not only its asserted compelling interests, but also the narrowly tailored means by which to achieve such interests.