Indiana Law Review Volum e 49 2016 Num ber 3 NOTES BY THE CONTENT OF THEIR CHARACTER: GOOD-FAITH CONSIDERATION OF RACE-NEUTRAL ALTERNATIVES IN AFFIRMATIVE ACTION UNDER FISHER EVAN D. C ARR * “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.” Dr. M artin Luther King, Jr.1 INTRODUCTION A ffirmative Action Plans (“AAPs”) that give preferential consideration to racial minorities continue to be a point of contention am ong academics, the judiciary, and society at large. This contention has led several states to ban such2 policies outright, while students rebuffed by race-conscious programs continue to challenge their constitutionality in the courts. One such student, Abigail3 Fisher, challenged the AAP in effect at the University of T exas at Austin— claiming that it denied her equal protection under the law, as guaranteed by the Fourteenth Amendment of the U.S. Constitution. 4 The Equal Protection Clause of the Fourteenth Amendment states, in part, that “[n]o State shall . . . deny to any person within its jurisdiction equal protection of the laws.” Over the course of several constitutional challenges to5 racially preferential AAPs, the U.S. Supreme Court has concluded that when a policy is facially discriminatory on the basis of race— as these AAPs unabashedly are— the policy must serve a compelling governmental interest and be narrowly tailored in its implementation as to avoid undue injury to parties affected by that * J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law; B.A. 2013, Indiana University—Bloomington. 1. Rev. Martin Luther King, Jr., I Have a Dream 5 (Aug. 28, 1963), available at http://www.archives.gov/press/exhibits/dream-speech.pdf [perma.cc/US8Z-CKXA]. 2. See infra Part II.A-B. 3. See infra Part II.A-B. 4. Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009), aff'd, 631 F.3d 213 (5th Cir. 2011), vacated, 133 S. Ct. 2411 (2013), remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 5. U.S. CONST. amend. XIV, § 1. htpp://dx.doi.org/10.18060/4806.0105 746 INDIANA LAW REVIEW [Vol. 49:745 discrimination. 6 This Note assumes the validity of diversity as a compelling governmental interest and focuses on the recent developments in the narrow-tailoring analysis under Fisher v. University of Texas at Austin (“Fisher”), which abandons the Court's patently deferential approach in Grutter v. Bollinger. This new standard7 requires a court’s narrow-tailoring analysis not afford any deference to government entities which choose to implement race-based AAPs— effectively restricting previous standards and compelling government entities to provide more convincing justifications for their reliance on racial preferences in hiring and admissions policies.8 In light of these new restrictions, this Note argues that to demonstrate good- faith consideration of race-neutral alternatives— and thus satisfy the narrow tailoring requirement of the analysis— government entities should be required to provide a concrete, quantifiable definition of “critical mass” before rejecting race- neutral alternatives as unsatisfactory. Further, even if a university soundly rejects9 one race-neutral alternative, it should be required to seek out actively, and draw from, the promising aspects of other race-neutral alternatives that other institutions have implemented. 10 Part I of this Note provides a brief history of AAPs in the United States and discusses how prior litigation has set the stage for current and future constitutional challenges. Part II explores the current judicial and social climate as it relates to racially-preferential AAPs through an examination of Schuette v. Coalition to Defend Affirmative Action and Fisher— the former case confirming the constitutionality of affirmative action bans and the latter case challenging the constitutionality of racially-preferential AAPs as a whole. Part III provides11 guidance regarding the establishment of a true critical mass by suggesting that universities observe a four-fifths rule that makes minority applicants eligible for admissions at at least four-fifths the rate that white students are eligible, while reserving the decision of which applicants are offered admission to a discretionary judgment by an admissions officer. Further, Part III demonstrates 6. See generally U.S. CONST. amend. XIV, § 1; Grutter v. Bollinger, 123 S. Ct. 2325 (2003). 7. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013), remanded to, 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 8. Fisher, 645 F. Supp. 2d at 590. 9. Critical mass is a term often used to define an ideal percentage of minorities represented in the student body of a university. See id. Accordingly, when the percentage of minorities represented at a university is lower under a race-neutral AAP than under a race-conscious AAP, universities often declare the former to be unworkable because it fails to meet its critical mass. Without requiring universities to define what their critical mass number is, they are able to arbitrarily manipulate it and, thus, have unfettered authority to reject any and all race-neutral alternatives on those grounds. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 667 (2014) (Garza, J., dissenting), cert. granted, 135 S. Ct. 2888 (2015). 10. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1639 (2014) (Scalia, J., concurring). 11. Id. at 1623. 2016] BY THE CONTENT OF THEIR CHARACTER 747 there are indeed workable race-neutral, socioeconomic alternatives available to universities. In fact, these race-neutral alternatives may be more inclusive of racial minorities than current race-conscious plans. Finally, Part III argues that a failure to seek out actively and implement promising aspects of these alternatives falls short of good-faith. I. B ACKGROUND A. History of Affirmative Action Affirmative action policies are policies in which an institution actively seeks to improve the representation and inclusion of groups historically discriminated against and not afforded the same benefits and privileges as the dominant majority. These policies rose in popularity as a result of the Civil Rights12 M ovement of the 1960s, leading President John F. K ennedy to issue Executive Order 10925, which mandated that government contractors take “affirmative action” to ensure an equal opportunity of hiring and inclusion to minorities.13 These policies, combined with the passage of the Civil Rights Act of 1964, were supposed to increase minority inclusion in both the workplace and institutions of higher learning substantially. Because these initiatives had little14 effect, in 1965 President Lyndon B. Johnson issued Executive Order 11246, which required government contractors to implement an affirmative action policy for the purpose of increasing the number of minority employees. Shortly15 thereafter, universities and other public institutions began to adopt and implement similar policies, which led to increased minority representation over time but failed to close the gap entirely between white higher-education enrollm ent and minority enrollment to this day.16 B. Prior Litigation The Court established the current strict-scrutiny standard in Grutter v. Bollinger, a case which challenged the race-conscious AAP used by the University of M ichigan Law School. Strict scrutiny prior to Grutter is outside17 the scope of this Note, but it was essentially termed a “minimum necessary 12. Affirmative Action Overview, NAT’L CONF. ST. LEGISLATURES, http://www.ncsl.org/ research/education/affirmative-action-overview.aspx [http://perma.cc/45Y3-QQYG] (last visited Oct. 4, 2014). 13. Id.; A Brief History of Affirmative Action, U. CAL.-IRVINE OFF. EQUAL OPPORTUNITY & DIVERSITY, http://www.oeod.uci.edu/aa.html [http://perma.cc/7H8-XLT4] (last visited Jan. 21, 2016); Establishing the President's Committee on Equal Employment Opportunity, 26 Fed. Reg. 1977 (Mar. 6, 1961). 14. Affirmative Action Overview, supra note 12. 15. Id.; A Brief History of Affirmative Action, supra note 13; Equal Employment Opportunity, 30 Fed. Reg. 12319 (Sept. 24, 1965). 16. Affirmative Action Overview, supra note 12. 17. Grutter v. Bollinger, 539 U.S. 306 (2003). 748 INDIANA LAW REVIEW [Vol. 49:745 [racial] preference” standard. Grutter effectively “jettisoned [the] minimum18 necessary preference standard” and replaced it with a standard which requires race-conscious AAPs to (1) “not unduly harm members of any racial group,” (2)19 give “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks,” (3) be “limited in time,” and20 21 (4) afford each applicant a “truly individualized consideration.”22 However, until now the only element a university had to prove under the Grutter standard was the “truly individualized consideration” requirement. In23 Grutter, the Court noted that providing individualized consideration to applicants automatically avoids doing undue harm to members of racial groups not receiving a preference, “thus making the first of these four requirements redundant with the fourth.” T he Court went on to determine that “there were no workable race-24 neutral alternatives at the University of M ichigan Law School” and decided it would probably rule the same way for other institutions, effectively “taking the bite out of” the good-faith consideration of race-neutral alternatives25 requirement. Further, the Court concluded that for the “near future,” affirmative26 action would be necessary to achieve diversity in universities, thus dulling the edge of the “limited in time” element. This gives credence to the assertion that,27 until now, the only element courts would realistically consider was the fourth: individualization.28 This “individualization requirement” essentially breaks down into three separate elements: “the extent to which racial preferences are (1) quantified, (2) undifferentiated, and (3) excessive.” The first “quantified” element aim s to29 prevent universities from using explicit formulas to weight particular characteristics. The second "undifferentiated" element aims to moderate the first to the extent that courts may allow quantified formulas if the formulas are adequately sophisticated in the way they differentiate applicants. Lastly, the third "excessive" element scrutinizes the weights given in any consideration to certain factors— in other words, making sure no one is given too much deference based 18. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978); Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 543 (2007). The minimum necessary preference iterated in Bakke continued to control until the Court in Grutter established a more elaborate standard in 2003. Grutter, 539 U.S. 306. 19. Grutter, 539 U.S. at 341. 20. Id. at 339. 21. Id. at 342. 22. Id. at 334; Ayres & Foster, supra note 18, at 543. 23. Ayres & Foster, supra note 18, at 543. 24. Id.; Grutter, 539 U.S. at 341. 25. Ayres & Foster, supra note 18, at 543. 26. Grutter, 539 U.S. at 340. 27. Id. at 342; Ayres & Foster, supra note 18, at 543. 28. Ayres & Foster, supra note 18, at 543. 29. Id. at 519. 2016] BY THE CONTENT OF THEIR CHARACTER 749 on his or her race.30 T his heightened, three-part test of the “individualized” element is applied only when a governm ent entity discloses that it is quantifying its racial preferences. Not surprisingly, universities avoid that scrutiny by not using31 express quantifications of racial preference. That way, they are able to32 implement practically unfettered racial preference that could only be substantiated— and possibly invalidated— by an exhaustive retroactive analysis of admissions data. This standard has been said to be too lenient on these33 “unquantified” AAPs because it “does not subject them to a meaningful constitutional calculus.” This problem presents itself in Fisher, where the court34 allowed the University of T exas to reject a race-neutral alternative by claiming that it did not provide a critical m ass of m inority students, without establishing a quantifiable critical mass.35 II. A FFIRM ATIVE A CTION TODAY: SCHUETTE AND FISHER A. Race-Conscious Affirmative Action Post-Schuette Schuette determined that race-conscious AAPs are not a constitutionally- protected right and may legally be banned at the state level. The case did not36 consider the merits of affirmative action or the methods through which it is affected, but it does help contextualize the problem of affirmative action and gauge the attitudes that this debate elicits on both sides.37 A fter the U.S. Supreme Court handed down the decision permitting race- conscious AAPs at the University of M ichigan in Grutter, the people of M ichigan took matters into their own hands, passing a constitutional amendment by voter referendum titled Proposition 2 (“Prop. 2”). This amendment, in pertinent part,38 “prohibits the use of race-based preferences as part of the admissions process for 30. Id. at 545. 31. Id. at 519. 32. Id. at 519-20. 33. Id. Through this retroactive, statistical analysis of a university’s admissions data, it is possible that a quantified preference could be extrapolated. For example, if a university claims it does not use a rigid, mathematical method for selecting its number of minority students, yet its admission statistics show that each incoming class invariably comprises exactly 20% minority students, a “quantified” racial preference could be found. In that case, that university could find itself subject to the more scrutinizing analysis reserved for programs that use rigid formulas. 34. Id. at 520. 35. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 667 (5th Cir. 2014) (Garza, J., dissenting), cert. granted, 135 S. Ct. 2888 (2015). 36. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1623 (2014). 37. Id. at 1625. 38. Id. at 1623-25; MICH. CONST. art. I, § 26. 750 INDIANA LAW REVIEW [Vol. 49:745 state universities.”39 Challenging the amendment, Plaintiffs brought suit alleging violation of the Equal Protection Clause, basing their claim on language contained in Washington v. Seattle School District No. 1, which stated “[w]here a government policy ‘inures primarily to the benefit of the minority’ and ‘minorities . . . consider’ the policy to be ‘in their interest,’ then any state action that ‘place[s] effective decisionmaking [sic] authority over’ that policy ‘at a different level of government is’ subject to strict scrutiny.” However, the Court firmly rejected40 the expansiveness of that standard and noted that not only did it invite overzealous application to otherwise acceptable state policy, but it was only applicable in cases where the referendum created a direct injury to minority groups by blocking the political process that would have allowed them to address their problems through remedial legislation. In Schuette, there was no such41 “political process” issue— the referendum did not affect minorities’ ability to change the law and “respondents [could not] prove that the action . . . reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not— cannot— deny” equal protection.42 In his concurrence, Justice Scalia showed his hand with respect to his opinion on current equal protection jurisprudence regarding racially-preferential AAPs— further evidence these policies are anything but well-settled. He referred43 to precedent cases such as G rutter and Gratz as “this Court’s sorry line of race- based-admissions cases,” and taking their conclusions as a given, attempted to answer the question of whether a state is prohibited from “banning a practice that the [Equal Protection Clause] barely— and only provisionally— permits.” He44 went on to note that “some States— whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll, or simply opposed in principle to the notion of ‘benign’ racial discrimination— have gotten out of the racial- preferences business altogether.” He finally noted that “with [the Court’s]45 express encouragement,” universities in California, W ashington, and Florida are experimenting with alternative, race-neutral policies for the purposes of promoting diversity and that universities in other States “can and should draw on the most promising aspects of these . . . alternatives as they develop.” All of this46 dicta demonstrates Justice Scalia believed that these policies, which give preferential treatment to minorities, should be seen as a privilege and not a right. At best, this privilege is a tenuous one, the constitutionality of which has been, 39. MICH. CONST. art. I, § 26 (amended 2006); Schuette, 134 S. Ct. at 1624. 40. Schuette, 134 S. Ct. at 1625 (internal quotations omitted) (quoting Washington v. Seattle Sch. Dist. No. 1, 102 S. Ct. 3187, 3196-97 (1982)). 41. Id. 42. Id. at 1625-27 (alteration in original). 43. Id. at 1639-40 (Scalia, J., concurring). 44. Id. at 1639 (alteration in original) (referring to race-conscious AAPs). 45. Id. (Roberts, C.J., concurring) (internal citation omitted). 46. Id. (Scalia, J., concurring) (alteration in original) (first emphasis added). 2016] BY THE CONTENT OF THEIR CHARACTER 751 and continues to be, frequently challenged. B. Fisher Revisits the Narrow Tailoring of Grutter, but Does It M ake Any M eaningful Changes? Fisher arose out of the denial of a Caucasian applicant at the University of Texas (“UT”) in 2008, who subsequently brought a lawsuit against the university alleging a violation of her equal protection rights. This essentially mimicked the47 cause of action brought in Grutter due to the fact that UT modeled its program directly after the program used, and approved, in Grutter. W ith deference and48 a “presumption of good faith” afforded to U T , presumably derived from the Court’s language and analysis in Grutter, the district court granted summary judgment to UT. The U.S. Court of Appeals for the Fifth Circuit affirm ed49 shortly thereafter. On appeal to the Supreme Court, “the Court’s decision to50 vacate the lower court’s decision and remand . . . rested almost entirely on the degree of deference” that the lower courts afforded to UT. Again, this degree of51 deference derives from the Supreme Court’s holding and reasoning in Grutter.52 The standard established in Grutter has been bemoaned as too lenient on universities and state actors that claim their AAPs have no “fixed” or rigid numerical calculus by which minority applicants are weighted. Once a53 university makes that assertion, the Grutter standard essentially assumes the program meets the remaining considerations of fairness to those who are not granted preference (i.e., that there was good-faith consideration of race-neutral alternatives and that it was limited in time). In Fisher, however, the Supreme Court rebuked that degree of leniency, stating: T he District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis . . . [I]n determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals 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. W hether this record— and not “simple . . . assurances of good intention”— is sufficient is a question for the Court of Appeals in the first instance.54 47. Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 217-18 (5th Cir. 2011), vacated, 133 S. Ct. 2411 (2013), remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 48. Id. 49. Id. 50. Id. at 231-32. 51. R. Lawrence Purdy, Fisher v. University of Texas at Austin: Grutter (Not) Revisited, 79 MO. L. REV. 1, 6 (2014). 52. Id. at 5-6. 53. See supra Part I.B. 54. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013) (emphasis added), 752 INDIANA LAW REVIEW [Vol. 49:745 This direction, if it can be called that, leaves much to be desired for proponents of the Grutter standard and those who hoped for its demise.55 Considering Justice Scalia’s dicta in Schuette that “Grutter’s bell may soon toll,” the latter may soon have their day. Essentially, this decision tells the lower court56 “we do not know exactly what the standard is for determining whether a race- conscious AAP is narrowly tailored, but this (and consequently the Grutter standard) is not it.” Accordingly, on remand from the Supreme C ourt, the Fifth Circuit had to decide just how much, or how little, deference should be given to UT in determining the “good faith” of their policy. Presumably, “the University receives no deference” when determining narrow tailoring. Despite having those57 instructions, it appears that the Fifth Circuit labored, at least in som e degree, to reaffirm its judgment in favor of the University’s policy, stating that “[w]ith the benefit of additional briefing . . . and the ordered exacting scrutiny, we affirm the district court’s grant of summary judgment.”58 On remand, the Fifth Circuit noted that diversity is clearly a compelling governmental interest and reiterated that UT would receive no deference when determining narrow tailoring of serving that interest. The court then stated that59 “narrow tailoring requires that the court verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” This verification60 required a “careful judicial inquiry into whether a university could achieve sufficient diversity without . . . racial classifications.” The court continued with61 “[i]t follows, therefore, that if ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable expenses . . . then the university may not consider race.’” Finally, before diving into its analysis, the court placed62 a proverbial cherry on top of the standard through which it scrutinized UT’s policy: its analysis “must not be strict in theory, but fatal in fact,” but also must not be “strict in theory but feeble in fact.” It is the latter of these two principles63 that the court in Fisher disappoints. In an attempt to show there was indeed a workable, race-neutral alternative, Plaintiff argued that the Top Ten Percent Plan (“TTPP”), already in place at UT remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 55. Purdy, supra note 51, at 14. 56. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1639 (2014) (Scalia, J., concurring); Purdy, supra note 51, at 14. 57. Fisher, 133 S. Ct. at 2419-20. 58. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 637 (5th Cir. 2014), cert. granted, 135 S. Ct. 2888 (2015). 59. Id. at 643-44. 60. Id. at 644 (internal citations omitted). 61. Id. 62. Id. (emphasis added). 63. Fisher, 133 S. Ct. at 2421. 2016] BY THE CONTENT OF THEIR CHARACTER 753 before the race-conscious program was instituted, qualified as such. Plaintiff64 noted that before 2004— the year that UT began considering the race of applicants in admission decisions— the TTPP had created a student body that included 21.5% Hispanic and African American students. This was much larger65 percentage than the 14% accepted as “critical mass” in Grutter. The TT PP66 essentially made a hardline rule that the university would automatically offer admission to any applicant who finished in the top 10% of his or her high school class and was used to fill approximately 80% of the freshman spots. B efore67 2004, the remaining 20% of students not admitted via the TTPP were admitted using a holistic review process (“HRP”), which considered socio-economic status and family educational achievements, but not race. After 2004, UT began to add68 race as a consideration to the HRP, which led to an increase in minority representation from 21.5% in 2004 to 25.5% in 2007— a rise of just 0.92% in African A merican enrollment and 2.5% in Hispanic enrollment. This raises the69 question: is the 2004 TTPP, in conjunction with the race-neutral HRP, a policy that “promote[s] the substantial interest [of diversity] about as well and at tolerable expenses” as the race-conscious admissions policy utilized after 2004? If so, the university may not consider race.70 In decrying the race-neutral 2004 policy as inadequate, the court offered several explanations. First, using only the TTPP without a HRP mechanism would be too mechanical, and the plan would not allow a university to tailor its student body for any purpose, let alone diversity. T here is no fault in that71 assessment. However, the court then disapproved of the TTPP, in conjunction with a race-neutral HRP, because “given the test score gaps between minority and non-m inority applicants, if holistic review was not designed to evaluate each individual’s contributions to . . . diversity . . . including those that stem from race” the HRP would “approach an all-white enterprise.” To that point, the72 court’s reasoning is less persuasive. Test scores are only one possible measure by which an applicant is gauged.73 Other factors might include: (1) socio-economic status; (2) family educational accomplishment; (3) athletic achievement; (4) familial structure; (5) geographic location; (6) extracurricular engagement; (7) personal interests and hobbies; and (8) personal achievement. W hen considering these other potential factors, the74 64. Fisher, 758 F.3d at 644-45. 65. Id. 66. Id. at 644. 67. Id. at 645-46. 68. Id. at 645. 69. Id. at 644-45. 70. Id. at 644 (alteration in original). 71. Id. at 645. 72. Id. at 647 (emphasis added). 73. Id. at 638, 647, 650 (explaining that consideration of test scores alone was unsatisfactory in creating a diverse class). 74. Id. at 638. 754 INDIANA LAW REVIEW [Vol. 49:745 Fifth Circuit’s assertion that without race minorities have no opportunity to distinguish themselves becomes pedestrian at best. Granted, many students will have similar achievements outside of test scores. T hose test scores then become the single determining factor— a scenario which, statistically speaking, would undoubtedly disfavor minorities. Yet, the problem lies in making race the75 measure that adjusts for this discrepancy in test scores, and thus, using race as a mechanism for including a higher number of minority students. The Fifth Circuit gave an example of a student who is a minority relative to the majority race of his or her particular school (e.g., Caucasian in a predom inantly African American school or vice versa) succeeding despite that environment, claiming this is a race consideration that contributes to diversity.76 That situation easily could be classified as personal achievement and make no reference to race whatsoever beyond asking “was this applicant a minority compared to the majority in their school or town?” By specifically reserving race as a way to bolster a student’s chances, UT allows a minority student who is not in that specific scenario to gain an advantage despite being perfectly within the m ajority in his or her respective environment. At the same time, UT could deny that special consideration to a white student in a school that has a majority of racial minority students. Furthermore, 85% of Hispanics and 80% of African Americans admitted to UT in 2008 were admitted through the TTPP, which is race-neutral. This means77 in this scenario— where an applicant is the racial minority relative to his or her cohorts— would contribute such a small percentage of the minorities granted admission that considering race for this sole purpose would be trivial. Such a scenario could be considered a “personal achievement” rather than an accomplishment achieved solely by virtue of being a certain race. Also, in cases like Fisher many racial minority applicants are actually among the majority racial class at their school due to de facto segregation geographically. Therefore,78 presuming that someone is a social outcast because of his or her skin color would often be erroneous. T he underlying point is that just because race plays a necessary, but not sufficient, role in the aforementioned scenario does not mean race is the only way to ensure the HRP is inclusive of racial minorities.79 An additional, and poignant, problem in the majority’s analysis in Fisher is brought to light in the dissent. The problem is the university’s complete failure80 to identify or define its “critical mass” for minority representation adequately in order for the student body to be considered “diverse.” The majority, with its81 75. See generally THE BROOKINGS INST., THE BLACK-WHITE TEST SCORE GAP (Christopher Jencks & Meredith Phillips eds., 1998), available at http://www.nytimes.com/books/first/j/jencks- gap.html [http://perma.cc/K5BQ-M4X8]. 76. Fisher, 758 F.3d at 653. 77. Id. at 657. 78. Id. at 650. 79. See infra Part III.B. 80. See generally Fisher, 758 F.3d at 661-76 (Garza, J., dissenting). 81. Id. at 666. 2016] BY THE CONTENT OF THEIR CHARACTER 755 dubious “non-deferential” scrutiny, allowed UT to define its “critical mass” as a student body which provides the “educational benefits that diversity is designed to produce.” Further, UT will only “cease its consideration of race when it82 determ ines . . . that the educational benefits of diversity can be achieved at UT through a race-neutral policy.” In less cryptic but equally circular term s, the83 university is saying that it will not reach “critical mass” until it has a diverse student body and will not stop considering race until it can have a diverse student body without considering race. Pure applesauce. How can the majority conclude84 using race is necessary in achieving this “critical mass” when the university cannot, and will not, define its “critical mass”? That looks suspiciously like deference to the university— something that the Supreme Court in Fisher expressly admonished and forbade the Fifth Circuit from engaging in. 85 The scrutiny of the majority becomes more dubious when considering that the 21.5% of minority representation in 2004— achieved without racial consideration in the HRP--was only augmented by approximately 4% between 2004 and 2007 while race was being considered in the HRP. Even that assumes that every86 single additional minority admitted through the HRP was admitted solely on the basis of race, something that the majority and UT appeared to admit was improbable. Therefore, the majority has allowed UT to use racial preference in its admissions process, despite its marginal effect, by declaring that this small gain in minority representation is the difference between “critical mass” and “not critical mass”— without ever indicating what critical mass is. This gives a lot of deference to the university where no deference is allowed. III. G OOD FAITH C ONSIDERATION OF R ACE-N EUTRAL A LTERNATIVES A. Doing Away with the Arbitrary Definition of Critical M ass as a Basis for Rejecting Viable Race-Neutral Alternatives As noted in the previous section and raised in Judge Garza’s dissent in Fisher, by allowing the university to reject a race-neutral alternative summarily by claiming it does not create a “critical m ass” of minority students— without requiring a definition of that critical mass— the Fifth Circuit effectively tendered a blank check to all universities. W ith this blank check, universities will be able87 to reject race-neutral alternatives at will by claiming that whatever minority representation a race-neutral AAP generates, it does not meet the ever-elusive “critical mass.” Taken in conjunction with the “limited in time” requirement of 82. Id. at 666-67. 83. Id. at 667. 84. See King v. Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting); see also In re Experient Corp., 535 B.R. 386, 413 n.123 (D. Colo. 2015) (explaining that “pure applesauce” is commonly interpreted to mean nonsense). 85. Fisher, 758 F.3d at 662, 667 (Garza, J., dissenting). 86. Id. at 644-45 (majority opinion). 87. Id. at 667 (Garza, J., dissenting). 756 INDIANA LAW REVIEW [Vol. 49:745 the Grutter standard, there must be a line drawn to prevent universities from continuing this practice in perpetuity.88 On this issue, the field of Industrial and Organizational Psychology provides sound guidance for potential solutions. This field is predominantly tasked with providing scientific research concerning human resource management processes, through which best practices are developed and implemented. A chief concern89 of the field is ensuring fair representation and opportunity to m inorities in the recruitment and selection practices of an organization. To that end, consultants90 from the field typically advocate for a four-fifths or 80% rule in selection. This91 rule is applied to the selection rate of applicants, meaning that the ratio of minorities selected under the process versus the number of minorities who92 applied for the position should be roughly 80% of the same for dominant-group applicants. To further illustrate this concept, if 100 white males apply for a job93 and ten are selected, the selection rate is 10% . If 100 black males apply for that same position, at least eight should be selected, which is four-fifths of the 10% selection rate of white applicants. However, if only fifty black males were to apply, then the four-fifths rule dictates that at least four black applicants be selected— because white applicants were selected at a rate of 10% , four-fifths of 10% is 8% , and 8% of fifty is four. This rule could be of great benefit to the courts and to universities when scrutinizing race-conscious admissions policies and considering the viability of race-neutral alternatives. It avoids the rigidity of setting a hardline quota for how many minority students must be represented— a practice expressly prohibited by the “individualization” element of the Grutter standard. By requiring that the94 admissions process only make a specific number of minorities eligible for admission, the four-fifths rule does not detract from any degree of individualization at the actual decision stage of the admissions process. The admissions board would have complete discretion regarding who is actually admitted. However, under this rule the board will not be able to reject the selection process as failing to meet critical mass if that process provides the board with eligible minority applicants at a minimum of four-fifths the rate it provides them with majority applicants. In other words, the four-fifths rule would ensure95 88. Grutter v. Bollinger, 539 U.S. 306, 334, 339, 341-42 (2003). 89. SOC’Y FOR INDUS. & ORGANIZATIONAL PSYCHOL., http://www.siop.org/ [http:// perma.cc/75LN-CSH6] (last visited Jan. 21, 2016). 90. WAYNE F. CASCIO & HERMAN AGUINIS, APPLIED PSYCHOLOGY IN HUMAN RESOURCE MANAGEMENT 167 (7th ed. 2011). 91. Id. at 169. 92. In the context of selection tests and measures, selection rate does not mean a guaranteed job offer. Id. at 167. It simply means that the test scores generated by the measurements make a candidate eligible for the offer based on the cutoff scores established by the organization. Id. 93. Id. at 169. 94. Grutter v. Bollinger, 539 U.S. 306, 334, 339, 341-42 (2003). 95. Again, it is important to emphasize that the four-fifths rule does not require that representation of minorities be 80% that of white students. The rate of selection, or eligibility, is 2016] BY THE CONTENT OF THEIR CHARACTER 757 that the admissions process renders minorities eligible for admission about as often as it does for white applicants, but it leaves the decision of who exactly is offered admission to the officers themselves. B. Combatting the Notion That There Are No Race-Neutral Criteria Which Are Inclusive of Racial M inorities Although the four-fifths rule may preclude or bar universities from rejecting a viable race-neutral alternative for failing to hit a “moving-target” critical mass, it is important to recognize this was not the only basis for rejecting the race- neutral plan in Fisher. The Supreme Court declared that if a race-neutral AAP creates diversity about as well as a race-conscious plan, then racial preference cannot be used. On remand, the Fifth Circuit accepted UT’s argument that96 without race as a consideration in determining eligibility, there was simply no other way to admit minorities and create diversity. In effect, that determination97 implies that even if the four-fifths rule was established as a firm way to determine what critical mass is, there is no conceivable way that m inorities may prove themselves eligible at four-fifths the rate as white applicants without considering their race as a distinguishing factor. Fortunately, such a blatantly derogatory assumption has been put to rest by an experimental program implemented at four highly selective universities in Israel.98 For approximately the past ten years, four large and highly selective universities in Israel have implemented a completely need-blind and race-blind AAP. The program gives preference to applicants who apply and are determined99 eligible for it based on three distinct parameters which identify them as disadvantaged, not as being a minority. These three parameters are: (1) the100 structure of opportunity determined by neighborhood and high school attended; (2) family socioeconomic standing determined by parental education and family size, not by financial holdings; and (3) individual or adverse circumstances.101 The application gathers this information with high fidelity, as all of the data is what is being used to generate that number. To illustrate, imagine a pool of minority applicants and a pool of white applicants. These two distinct applicant pools are subjected to the same battery of selection tests. The rate at which applicants from each pool pass these tests, and thus become eligible for admission—not the rate at which they are actually offered admission—would have to be within 80% of one another. 96. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 644 (5th Cir. 2014), cert. granted, 135 S. Ct. 2888 (2015). 97. Id. at 647. 98. Sigal Alon & Ofer Malamud, The Impact of Israel’s Class-Based Affirmative Action Policy on Admission and Academic Outcomes, 40 ECON. EDUC. REV. 123, 125-26 (2014). 99. Id. at 126. 100. Id. 101. The adverse circumstances metric is invoked when an applicant is orphaned, an immigrant, divorced, single parent, disabled, experienced the death of a sibling, has divorced parents, or has a parent or parents with a disability or chronic illness. Id. http://dx.doi.org/10.1016/j.econedurev.2014.02.004 758 INDIANA LAW REVIEW [Vol. 49:745 verifiable via public record. This information is then processed by an102 independent non-profit organization, where the responses are calculated and turned into a composite score representing the applicant’s overall level of socioeconomic disadvantage. This score ranges from zero to eighty-five and a103 cutoff score is set by the university to determ ine at what point on that scale applicants become eligible for preferential treatment. This step, however, is104 only the first of a three-step process.105 The second step determines the academic eligibility of the applicant, meaning that even if the applicant does qualify for preferential treatment based on his or her socioeconomic disadvantage, the applicant must still demonstrate a particular degree of academic achievement to qualify for the preference. The cutoff for106 eligibility at this stage is generally 0.5-1.0 standard deviations below the average cutoff point for students who qualify without the preference.107 Once both socioeconomic and academic eligibility are calculated, there is yet a third stage to overcome: the decision stage. Unlike the TTPP used in Fisher,108 which automatically grants admission to students ranking in the top 10% of their high school class, the Israel Plan (“IRP”) does not guarantee admission to109 anyone. As such, the IRP would likely satisfy the individualization requirement110 espoused by the Court in Grutter, especially considering that the decision process is not holistic. A decision-maker may choose to give more weight to academic111 eligibility than socioeconomic eligibility, vice versa, or both equally. Through112 these metrics— socioeconomic disadvantage based on neighborhood, high school, parental education, number of family members, and individual adverse circumstances— taken in conjunction with relative academic achievement and the discretion of admissions officers, these four universities have been able to become more diverse than they otherwise would have been.113 The true beauty of this program’s design is realized when combined with the 102. Id. 103. Id. 104. Id. 105. Id. 106. Id. 107. Id. 108. Id. 109. This plan creates resentment among students who attend highly-competitive schools and fall outside the top 10% but have much better standardized test scores than lesser-school top ten “percenters.” Sigal Alon, The Diversity Dividends of a Need-Blind and Color-Blind Affirmative Action Policy, 40 SOC. SCI. RES. 1494, 1495 (2011). It fails to create socioeconomic diversity because the top 10% in every school tend to be less disadvantaged than the others and it saturates the applicant pool with automatic admissions, thus curtailing a university’s ability to exercise discretion in shaping its student body. Id. 110. Alon & Malamud, supra note 98, at 126. 111. Id. 112. Id. 113. Alon, supra note 109, at 1500-01. http://dx.doi.org/10.1016/j.ssresearch.2011.05.005 2016] BY THE CONTENT OF THEIR CHARACTER 759 legal restrictions placed on it by the four-fifths rule. If somehow the IRP failed to generate a pool of eligible minority applicants at four-fifths the rate of majority applicants, it would fail to meet critical mass and thus race would have to be114 considered again. However, the IRP plan has a m echanism for adjusting the selection rate. Recall the three parameters for determining socioeconom ic eligibility are statistically combined to create a composite score for each applicant and the university established a cutoff point for that score above which any applicant was eligible. The same was done for academic achievement115 numbers. In the event these cutoff scores do not generate eligible minority116 applicants at four-fifths the rate as majority applicants, the cutoffs may simply be manipulated to include more minorities. In simpler terms, the university may raise or lower cutoffs to, in effect, become more inclusive and qualify more historically marginalized applicants for admission. Furthermore, even in the face of this manipulation in favor of minority applicants, the IRP program fails to violate equal protection rights because it does absolutely nothing in terms of automatic admissions to those students based on race. Race was never a consideration in the application process and manipulating the cutoff scores to include more ethnic minorities does nothing to guarantee admission. This process sim ply makes individuals eligible for further consideration based on their merits when they would otherwise be denied that opportunity. The decision to grant that applicant admission and in effect allow him or her the preferential treatment is still left to an experienced, human admissions officer based on the officer's individualized assessment of the applicant. To that point, admissions officers could craft their incoming classes in any way they see fit; whether that be admitting all, some, or none of the IRP- eligible applicants— a right that has been expressly confirmed by the Court in Schuette.117 Detractors of race-neutral adm issions may have some reservations about using the IRP in the United States. After all, Israel is an entirely different country with an entirely different history, traditions, and cultural and societal dynamics than the United States. These are all good reasons to believe that what promotes diversity and alleviates racial disparities there, might not work equally well here. Thankfully, a similar plan was designed— and its effects simulated with a U.S. sample— by Dr. M atthew Gaertner in 2008.118 The plan was developed in response to fears that Colorado was going to 114. The selection rate, or more appropriately termed in this context the “eligibility rate,” for minorities could be found retroactively, as race is not a contemporaneous consideration while determining eligibility. 115. Alon & Malamud, supra note 98, at 126-27. 116. Id. 117. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1623 (2014). 118. Matthew N. Gaertner, Advancing College Access with Class-Based Affirmative Action, in THE FUTURE OF AFFIRMATIVE ACTION 175-76 (Jason Renker & Joe Miller eds., 2014), available at http://apps.tcf.org/future-of-affirmative-action [http://perma.cc/YRZ5-J5G5]. 760 INDIANA LAW REVIEW [Vol. 49:745 follow other states’ lead and pass a constitutional referendum banning race- conscious adm issions policies. To preserve minority representation at the119 University of Colorado at Boulder, the university looked to Gaertner for help in creating socioeconom ic factors which would be inclusive of the underprivileged. His design measured factors such as the applicant’s native120 language, single-parent status, parental education level, family income, number of dependents in the fam ily, geographic location of the applicant’s high school, percentage of students from the applicant’s high school eligible for free or reduced-price lunch, school-wide student-to-teacher ratio, and the size of the twelfth-grade class. Under the program, students who qualified for preferential121 treatment on a socioeconomic basis would get an even larger boost than racial minorities received under the race-conscious program. That boost becomes122 even more pronounced when the applicant’s academic achievement index shows that the applicant overachieved relative to similarly-situated peers.123 To test the hypothesis (that these socioeconomic factors would promote inclusion of racial minorities), simulations were run using sample subjects that were representative of the university’s typical applicant pools. Not surprisingly,124 the socioeconomic diversity of the simulated admits increased, bringing the acceptance rate for lower-class applicants from 70% under a race-conscious policy to 82% under the race-neutral policy. W hat was surprising, however,125 was the acceptance rate for under-represented minorities. The acceptance rate126 for these applicants increased from 56% under the race-conscious policy to 65% under the race-neutral policy. In other words, this system of admitting127 applicants based on their socioeconomic adversity beat race-conscious affirmative action at its own game. There are several distinctions to be made between the Colorado plan and the IRP. Because there are not multiple hurdles or a discretionary decision stage once applicants make it past those hurdles, the four-fifths rule applied to the Colorado plan would probably function as an unlawful quota. Although this particular policy does not lend itself as well to the aforementioned four-fifths rule as the IRP, that is hardly consequential. The four-fifths rule is only necessary to prevent universities from using the critical mass argument to reject race-neutral policies that qualify minorities almost as well as a race-conscious policy. W hen the128 race-neutral policy qualifies racial minorities just as well— or in the case of the Colorado plan, better than a race-conscious policy— the university would not be 119. Id. 120. Id. 121. Id. at 177. 122. Id. 123. Id. at 177-78. 124. Id. at 180-81. 125. Id. 126. Id. at 181. 127. Id. 128. See supra Part III.A. 2016] BY THE CONTENT OF THEIR CHARACTER 761 able to avail itself of the critical mass argument in the first place. In those cases, the race-neutral policy would not only generate an acceptable critical mass, but an improved one. Although the fair representation of minorities was obvious during the simulations, the policy itself was never implemented. However, it is important129 to note it is possible that minority acceptance rates could suffer under the same plan. For example, if a university draws applications from hypothetical community X and community X is populated by well-established and financially- secure minorities and relatively less-privileged Caucasians, then the under- privileged Caucasians would receive the preferential treatment. But that would not necessarily result in less racial minorities being admitted because they would be financially secure and have the resources to be admitted based on standardized test scores and GPA alone— not their skin color. The policy would work to130 ensure that an equilibrium of opportunity is kept between the privileged and the underprivileged, not along racial lines. Far more likely would be the scenario that played out at UCLA Law School and other universities in C alifornia— a state with a constitutional ban on race- conscious affirmative action. There, a race-neutral AAP, which used similar131 socioeconomic factors as the Colorado and IRP plan, greatly increased the socioeconomic diversity of admitted students. However, the num ber of black132 and Hispanic enrollment decreased significantly. This decrease could be the133 result of minorities simply not wanting to apply to the program. Virtually every other school competitive with UCLA was still able to offer racial preference in their admissions policy. As such, these other schools were highly favored by134 minorities. In such a situation, convincing minorities to apply through a race-135 neutral policy is not easy because other schools may simply tell minority applicants that they get an automatic boost. M eanwhile, the race-neutral school136 is forced to tell them they might get a boost, provided that they satisfy certain socioeconomic and/or academic criteria. So, although these negative recruitment effects can be mitigated by essentially marketing directly to minorities, it will be a tougher sell than it used to be.137 129. The proposed constitutional referendum was defeated, which led the University of Colorado to abandon the race-neutral plan. Gaertner, supra note 118, at 180, 185. 130. Education and Socioeconomic Status, AM. PSYCHOL. ASS’N, http://www.apa. org/pi/ses/resources/publications/factsheet-education.aspx [http://perma.cc/D7ZA-XZGT] (last visited Jan. 21, 2016). 131. Richard Sander, The Use of Socioeconomic Affirmative Action at the University of California, in THE FUTURE OF AFFIRMATIVE ACTION 99, 100-03 (Jason Renker & Joe Miller eds., 2014), available at http://apps.tcf.org/future-of-affirmative-action [http://perma.cc/YRZ5-J5G5]. 132. Id. at 105. 133. Id. at 106. 134. Id. 135. Id. 136. Id. 137. Richard L. McCormick, Converging Perils to College Access for Racial Minorities, in 762 INDIANA LAW REVIEW [Vol. 49:745 The only way to eliminate the minority recruitment issue truly is to level the playing field. As the UCLA Law School found out, when other schools are able to offer minority acceptance boosts for no reason other than skin color, minorities (like anyone else) may simply take the path of least resistance and apply to those schools. Thankfully, the Supreme Court has once again granted certiorari and now has the perfect opportunity to create this level playing field. By deciding138 this case at the Supreme Court level rather than confining its import to the Fifth Circuit, the Court can mandate a concrete definition of critical mass and proactive pursuit of race-neutral alternatives on a national scale. In doing so, the Court139 would limit universities’ ability to continue offering unfettered racial preference to minority applicants at the expense of less appealing— but potentially more helpful— race-neutral programs. Accordingly, the minority enrollment statistics generated by race-neutral A A Ps could be fully realized and the benefits of such programs fully appreciated. In the event the Court fails to make that sweeping decision, as will likely be the case with the advent of Justice Scalia’s death, the courts of each circuit must recognize the merits of these socioeconomic admissions plans and require universities under their jurisdictions to “draw on the most promising aspects” of race-neutral, socioeconomic AAPs. In doing so, courts across the United States140 will create a uniform, level playing field where applicants cannot flock to schools that offer admission based merely on skin color. Instead all applicants would be evaluated based on their academic achievements, illuminated by the social and economic adversity which they— through their good character and resolve— have overcome to accomplish their goals. For that reason, these race-neutral policies should be implemented instead of the presumptuous racially-preferential policies. C. Are the Costs of Implementing Race-Neutral Policies Tolerable? Before remanding the case back to the Fifth Circuit, the U.S. Supreme Court stated that if a race-neutral approach can promote diversity about as well as a race-conscious one and at tolerable expenses, then racial preferences cannot be used. As demonstrated by the preceding section of this Note, race-neutral AAPs141 THE FUTURE OF AFFIRMATIVE ACTION 110, 117-18 (Jason Renker & Joe Miller eds., 2014), available at http://apps.tcf.org/future-of-affirmative-action [http://perma.cc/YRZ5-J5G5]. 138. Despite being rebuffed at the district court level, twice at the circuit court level, and again when petitioning the Fifth Circuit for en banc review, Abigail Fisher’s petition for certiorari with the U.S. Supreme Court has been granted. Fisher v. Univ. of Tex. at Austin, 135 S. Ct. 2888 (2015). 139. Id. 140. See Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1639 (2014) (Roberts, C.J., concurring); Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587 (W.D. Tex. 2009), aff'd, 631 F.3d 213 (5th Cir. 2011), vacated, 133 S. Ct. 2411 (2013), remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 141. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013), remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 2016] BY THE CONTENT OF THEIR CHARACTER 763 may in fact create a racially diverse student body at an even higher rate than race- conscious AAPs. Therefore, the next obstacle to the effective implementation142 of these policies is their cost. Due to the fact that the race-neutral Colorado Plan was purely experimental, the cost of its implementation is unknown. The socioeconomic policy used at143 UCLA Law School, which is still being used, was obviously not a financial fatality as the program is thriving and in 2011, UCLA had its highest bar-passage rate ever. Furthermore, the Suprem e Court generally does not view144 administrative costs as a legitimate basis for abrogating rights when applying the strict scrutiny test. To illustrate, in Saenz v. Roe, the Court concluded that a145 “State's legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.” This reluctance to146 accept costs as a justification has led experts to conclude that universities “should not assume that cost savings alone can justify the ongoing use of a race-conscious policy.” Because the cost of implementing a race-neutral policy is unlikely to,147 by itself, justify the rejection of the policy, the remainder of this section will demonstrate some costs of not implementing a race-neutral socioeconomic policy. In other words, it will demonstrate the pitfalls of current policies. First, race-conscious AAPs engender resentment and feelings of unfairness among white peers. In one clinical study, a group tested subjects to find out148 how their perceptions of “modern racism” and “collective relative149 deprivation” are affected by race-conscious AAPs. The experiment used two150 separate conditions: one involving an organization with a race-conscious AAP and the other involving a race-neutral Equal Employment Opportunity (“EEO”) initiative that simply barred discrimination for any reason. The results showed151 that white subjects under the race-conscious AAPs were significantly more likely to express beliefs of modern racism and collective relative deprivation. This152 142. Gaertner, supra note 118, at 181. 143. Id. at 180. 144. Sander, supra note 131, at 107. 145. Arthur L. Coleman & Teresa E. Taylor, Emphasis Added: Fisher v. University of Texas and Its Practical Implications for Institutions of Higher Education, in THE FUTURE OF AFFIRMATIVE ACTION 43, 52-53 (Jason Renker & Joe Miller eds., 2014), available at http://apps.tcf.org/future-of-affirmative-action [http://perma.cc/YRZ5-J5G5]. 146. Saenz v. Roe, 526 U.S. 489, 507 (1999). 147. Coleman & Taylor, supra note 145, at 53. 148. Garriy Shteynberg et al., But Affirmative Action Hurts Us! Race-Related Beliefs Shape Perceptions of White Disadvantage and Policy Unfairness, 115 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 1, 5-6 (2011). 149. This term is defined as the belief that racial minorities are no longer discriminated against and instead receive undeserved special treatment. Id. at 1-2. 150. This term is defined as the extent to which an in-group (whites) believes that it is chronically disadvantaged in society. Id. at 2. 151. Id. at 4-5. 152. Id. at 5-6. http://dx.doi.org/10.1016/j.obhdp.2010.11.011 764 INDIANA LAW REVIEW [Vol. 49:745 heightened belief in modern racism and collective relative deprivation subsequently led to an increased perception of unfairness within the organization itself. Conversely, white subjects under the race-neutral (“EEO”) condition153 showed no increase in modern racism or collective relative depravation beliefs and were in fact said to be completely “dormant.” Accordingly, their perception154 of organizational unfairness also remained dormant. These results show that155 race-conscious AAPs essentially activate beliefs that racial minorities are not disadvantaged or discriminated against in society, and that minorities receive undeserved special treatment. One can see how this creates racial tension156 between whites and minorities; each group feels it is being oppressed for the benefit of the other. That is a problem which, unfortunately, is made even worse by the next pitfall of race-conscious AAPs. The next pitfall is this: racial minorities are disadvantaged. But they are not necessarily disadvantaged because of their skin color. Racial minorities are disadvantaged because they are disproportionately impoverished. African-157 American and Hispanic com m unities suffer from poverty at rates of 27% and158 24% , respectively, while the poverty rate is 10% among Caucasians and 14% among remaining ethnicities. Instinctively, someone might consider this159 discrepancy a reason to promote race-conscious AAPs. It seems to be a logical way of providing minorities with an opportunity to get a college education, a well-paying job, and leave poverty behind them for good. Unfortunately, under current race-conscious AAPs, that is not what happens. At selective universities, 86% of minority students who are admitted are upper or middle class. To make matters worse, race-conscious AAPs at these160 selective schools give a 28% admission boost to applicants for minority status and 153. Id. 154. Id. 155. Id. 156. Id. 157. Poverty Rate by Race/Ethnicity, HENRY J. KAISER FAM. FOUND., http://kff.org/other/state- indicator/poverty-rate-by-raceethnicity/ [http://perma.cc/7E9Z-CQRK] (last visited Jan. 21, 2016). 158. Individuals or families are in poverty if their annual pretax cash income falls below a dollar amount the Census Bureau determines using a federal measure of poverty that is recalculated each year. What Are Poverty Thresholds and Poverty Guidelines?, INST. FOR RES. ON POVERTY, http://www.irp.wisc.edu/faqs/faq1.htm [http://perma.cc/878K-YT45] (last visited Jan. 21, 2016) (demonstrating that Census Bureau poverty lines hover around $23,000 for a family of four). 159. Poverty Rate by Race/Ethnicity, supra note 157. 160. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 341 (Princeton Univ. Press 1998). Although middle, upper-middle, and upper class distinctions are nebulous and hard to define clearly, generally the dollar thresholds are $32,500, $100,000, and $150,000, respectively. David Francis, Where Do You Fall in the American Economic Class System?, U.S. NEWS (Sep. 13, 2012, 10:50 AM), http://money.usnews.com/money/personal-finance/articles/ 2012/09/13/where-do-you-fall-in-the-american-economic-class-system [https://perma.cc/X48B- 9PNH]. 2016] BY THE CONTENT OF THEIR CHARACTER 765 a whopping 0% boost for low-income status. In effect, this means that race-161 conscious AAPs like the one used at U T admit minorities who have performed well academically and also have the added benefit of being a “diverse” color. But that does nothing to address the one factor that definitely disadvantages minorities: poverty. M ost minority students adm itted to these schools were not disadvantaged at all as far as access to education, food, or finances are concerned. Thus in effect race-conscious AAPs create all the resentment and162 perceptions of unfairness in white peers, while simultaneously ignoring the one factor that would be fair to address through affirmative action: poverty. It is like going to the dentist, enduring the pain and suffering of a procedure, only to leave with the same cavity that you needed to get fixed. Because race-neutral alternatives indeed exist and have demonstrated their merit in both fairness and in utility, failure to entertain their implementation or to subscribe to their wisdom should be considered a violation of equal protection under the law. This is especially true considering how little weight courts give to the costs of implementation and what is at stake if race-neutral AAPs are not used. In Fisher, UT experimented with race-neutral alternatives only to the extent UT was barred from considering race as a matter of law. As soon as the Court163 decided Grutter, that prohibition disappeared and universities reverted back to a race-based HRP. T he standard handed down in Grutter requires “good faith164 consideration of workable race-neutral alternatives,” which was further165 constricted by the Court in Fisher, asserting that in determining the “good faith” aspect of these considerations, UT and other similarly situated universities are afforded no deference. Abandoning the use of race-neutral AAPs the instant the166 law allows, despite substantial evidence that such programs may increase minority representation, cannot be deemed a “good faith” consideration. Furthermore, in Schuette, Justice Kennedy (for the court) and Justice Scalia (in concurrence) both reaffirmed Grutter’s admonition that universities “can and should draw on the most promising aspects of these . . . alternatives as they develop.” This supports the notion that not only should universities justify the167 supposed inadequacy of race-neutral alternatives by setting a quantifiable “critical mass,” but they should also actively seek out other alternatives and draw from their most promising aspects to satisfy narrow tailoring.168 161. WILLIAM G. BOWEN ET AL., EQUITY AND EXCELLENCE IN AMERICAN HIGHER EDUCATION 105 (Univ. of Va. Press 2005). 162. BOWEN & BOK, supra note 160, at 341. 163. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 645 (5th Cir. 2014), cert. granted, 135 S. Ct. 2888 (2015). 164. Id. 165. Grutter v. Bollinger, 539 U.S. 306, 339 (2003). 166. See generally id. at 306; Fisher, 758 F.3d at 633. 167. Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary, 134 S. Ct. 1623, 1630 (2014) (emphasis added); id. at 1639 (Scalia, J., concurring). 168. Id. 766 INDIANA LAW REVIEW [Vol. 49:745 The facts of Fisher demonstrate that not only is UT failing to seek out workable race-neutral alternatives, but it was only using race-neutral alternatives in the first place because it was controlled by a prior ruling in Hopwood v. State of Texas. This cannot be the good-faith consideration of race-neutral169 alternatives” mandated by the Court in Fisher. The university has not attempted implementation of race-neutral alternatives of its own accord and summarily rejected the continuation of the mandated race-neutral TTPP by citing a mercurial “critical mass” that could not be met without considering race. Taken in170 conjunction with the restrictive language used by the Court in Fisher that no deference would be afforded to the university in determining the narrow tailoring of these considerations, it cannot be said that its efforts— or lack thereof— are satisfactory. Thus, UT's policy must be struck down as unconstitutional under the Fourteenth Amendment.171 C ONCLUSION Since Grutter, the scrutiny of affirmative action has long drawn the ire of critics and support of proponents. Now, in the face of the Supreme Court’s172 more critical language in Fisher, both sides of the debate have come to an impasse. The Court effectively determined that the current state of strict scrutiny analysis for such policies is changing and affords government entities no deference. However, the C ourt failed to create any workable standard for the173 supposed new scrutiny, whether it be with respect to good-faith consideration, undue burdens to those excluded from the racial preference, limited in time, or individuality elements of a narrow tailoring. Therefore, the Fifth Circuit was174 tasked with determining whether UT met this new, ambiguous, and admittedly elusive standard. Unfortunately, despite having the apparent authority to restrict the standard as much, or as little, as the Fifth Circuit wanted in accordance with the Court’s instruction, the Fifth Circuit ultimately took the “strict in theory but feeble in fact” approach to the Fourteenth Amendment. By allowing UT’s race-based175 policy to pass, the Fifth Circuit has effectively declared that universities may discount effective race-neutral policies by merely asserting that compared to 25.5% minority enrollment, 21.5% minority enrollment does not meet critical mass while refusing to define what the critical mass threshold is. Furthermore, until 2004, the TTPP was the only race-neutral policy UT had attempted. As176 169. 78 F.3d 932, 935 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003). 170. Fisher, 758 F.3d at 667 (Garza, J., dissenting). 171. U.S. CONST. amend. XIV, §1. 172. See supra Part I.B. 173. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419-20 (2013), remanded to 758 F.3d 633 (2014), cert. granted, 135 S. Ct. 2888 (2015). 174. Purdy, supra note 51, at 14. 175. Fisher, 758 F.3d at 644. 176. Id. at 667 (Garza, J., dissenting) (discussing why the rejection of UT’s race-neutral AAP 2016] BY THE CONTENT OF THEIR CHARACTER 767 soon as the law allowed, UT, citing arbitrary “critical mass” reasons, reverted back to using race and has not pursued another race-neutral policy since.177 Despite these facts, the Fifth Circuit denied Fisher’s petition for en banc review in November, 2014. The ruling on rem and in Fisher operates just as deferentially as the standard in Grutter and simply kicks the proverbial can down the road. In keeping with the old adage “if you want something done right, you’ve got to do it yourself,” the Supreme Court now has the opportunity to demonstrate to the nation the proper strict-scrutiny analysis for race-conscious AAPs. The good-faith consideration element of narrow tailoring must be construed as requiring a concrete definition of what “critical mass” is in order to reject alternative measures that fall short of it. It must also require continued efforts to seek out and draw from the most promising aspects of alternative policies being implemented at other institutions. was premature and should not pass muster under strict scrutiny). 177. Id.