Texas affirmative action case: US Supreme Court upholds ruling

Parts of case could apply to admissions and financial aid policies in most of US higher education

June 27, 2016

The US Supreme Court has upheld the University of Texas at Austin’s consideration of race and ethnicity in college admissions.

Some parts of the decision in the case, Fisher v University of Texas at Austin, related to features unique to that university.

But other parts of the case will likely apply to admissions and financial aid policies in most of American higher education.

The court ruled that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its “10 per cent plan”, in which the top 10 per cent of high school graduates are admitted to the public college or university of their choice.

The university does have “a continuing obligation” to meet the legal test of “strict scrutiny” by “periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests”, the decision says.

At the time that the plaintiff was rejected for admission, however, the decision said, the university had met that burden.

“The record here reveals that the university articulated concrete and precise goals – e.g., ending stereotypes, promoting ‘cross-racial understanding’, preparing students for ‘an increasingly diverse workforce and society’, and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ – that mirror the compelling interest this court has approved in prior cases”, said the decision.

The decision was written by Justice Anthony M. Kennedy, generally considered a swing vote on many issues, but who has consistently in the past been skeptical of education policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

In a dissent, Justice Samuel Alito Jr. – joined by Chief Justice John Roberts and Justice Clarence Thomas – strongly criticised the decision and the University of Texas policies. The dissent calls the university’s arguments “shifting, unpersuasive and, at times, less than candid”.

Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court, recused herself from the case.

When Justice Antonin Scalia died in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions, so his death may have cleared the way for the decision. A four-four tie on the case would still have left the University of Texas policies intact, but would not have the same power as a precedent on the issue.

A defeat for affirmative action had been widely expected because, with Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

Michael A. Olivas, the William B. Bates distinguished chair in law at the University of Houston and interim president of the university’s downtown campus, is one of the few legal observers who has consistently predicted that affirmative action would survive the legal challenge brought by Abigail Fisher, a white woman rejected for admission by the University of Texas.

Via email, he said: “It is about time that Fisher accepts that she was inadmissible, and that she lost, once again. No applicant of color would ever get so many bites at the apple, and whites still make up a disproportionate percent of percentage plan admits and discretionary admits at UT.”

Fisher, through her lawyers, released this statement: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”

Leaders of many higher education groups praised the ruling. President Barack Obama spoke about the decision at a White House briefing, saying: “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.”

Hillary Clinton, the presumptive Democratic nominee for president, tweeted her approval.

Donald Trump, the presumptive Republican nominee, has not weighed in since the decision was announced.

The ruling is the second time the Supreme Court has considered the Fisher case.

Ruling 7 to 1, the court in 2013 found that the US Court of Appeals for the Fifth Circuit had erred in not applying “strict scrutiny” to the policies of UT Austin, which were challenged by Fisher.

She said that her rights were violated by UT Austin’s consideration of race and ethnicity in admissions decisions. Fisher’s lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body, the 10 per cent plan.

Fisher was a high school senior when she first sued UT Austin in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT but has continued the legal case over her rejection.

The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.

In July 2014, a three-judge panel of the US Court of Appeals for the Fifth Circuit upheld, 2 to 1, the UT admissions plan. And it is an appeal of that ruling on which the US Supreme Court ruled.

This is a shortened version of an article that first appeared on Inside Higher Ed. Read the full article here.

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