By George E. Curry
George Curry Media
Affirmative action is back on the front-burner at the U.S. Supreme Court, with the justices hearing oral arguments Wednesday (Dec. 9) in Fisher v. University of Texas-Austin for the second time in two years.
At issue is whether Texas’ affirmative action admission program – which uses a variety of factors including leadership, extracurricular activities, work experience, socio-economic status and race – is unconstitutional because it unlawfully denied a White woman admission to the state’s flagship university.
Lawyers for Abigail Fisher argue that she was denied admission to the University of Texas because of her race. However, the university has argued at both the appellate and Supreme Court level that Fischer wouldn’t have been accepted even if there were no affirmative action programs.
The case is being closely watched because it could have an impact on public and private employment and higher education in particular. Affirmative action supporters are hoping, at worse, the court will limit its ruling to the “strict scrutiny” issue and not overturn precedents upholding affirmative action.
When Fisher applied for 2008 fall admission to the University of Texas, it filled nearly 90 percent of its openings with automatic admissions for Texas residents who were in the top 10 percent of their high school graduating class. The remaining 10 percent of the seats were filled with individualized consideration of applicants based on demonstrated leadership qualities, awards and honors, work experience, extracurricular activities, socioeconomic status, family status and responsibilities, standardized test scores and race.
Because she did not finish in the top 10 percent of her high school class in Sugarland, Texas, Fisher’s only opportunity to gain admission was through the individualized assessment.
Though no quantifiable score was assigned to any category, including race, Fisher decided to challenge the consideration of race.
In its “Brief of Opposition,” the university stated: “The undisputed evidence demonstrated that Fisher would not have been offered fall admission in 2008 even if she had scored a perfect ‘6’ on her PAI – the portion of the admissions process where race is considered” along other factors.
Fisher enrolled in Louisiana State University in Baton Rouge and returned to Austin, Texas after graduation to work as a financial analyst. Even after graduating from LSU, she pursued her claim against the University of Texas.
Two years ago, the Supreme Court sidestepped ruling on the merits of Fisher’s case, opting to rule more narrowly by a vote of 7-1 to send the case back to the Fifth Circuit with instructions to consider the case in light of the court’s strict scrutiny requirement.
Writing for the court’s 7-1 majority, Justice Anthony Kennedy said,” … Strict scrutiny imposes on the university the ultimate burden of demonstrating before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
That means that universities are free to consider race only after seeking solutions that do not involve race.
Justice Ruth Bader Ginsburg wrote in her lone dissent, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”
She said, “The University of Texas at Austin (University) … has steered clear of a quota system like the one struck down in Bakke, which excluded all non-minority candidates from competition for a fixed number of seats … Justice Powell’s majority opinion in Bakke “rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.’ And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”
Clarence Thomas was the only justice who voiced support for overturning the court’s 2003 decision in Grutter, permitting the narrowly tailored use of race in college admissions. He said in his concurring opinion, “I write separately to explain that I would overrule Grutter v. Bollinger and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”
Justice Elena Kagan, a strong supporter of affirmative action, recused herself because she had worked on the case as solicitor general.
That leaves open the possibility that the court could deadlock 4-to-4, meaning the rulings of the two lower courts that upheld the University of Texas admissions program would be affirmed.
Educators thought the issue of affirmative action had been settled in a pair of University of Michigan affirmative action rulings in 2003 – one upholding the law school admissions program (Grutter v. Bollinger) and one striking down the undergraduate admissions process (Gratz v. Bollinger). In each case, the court declared that state universities have a compelling interest that could justify the consideration of race in college admissions because of the benefits that flow to all students from having a diverse student body.
It was only after the court’s ruling in Grutter that the University of Texas expanded its affirmative action plan beyond the 10 Percent Plan.
If there is any upside to Fisher’s challenge, it is she is not asking the court to overturn the Michigan decision affirming the constitutionality of affirmative action. Rather, she seems to focus on whether the appeals court properly applied “strict scrutiny” per the Supreme Court’s guidance.
Texas created its Top 10 percent program as a conservative way of increasing diversity in higher education. However, as many predicted at the time, it was not sufficient to increase Black enrollment. As Justice Stephen Breyer noted, “Before Hopwood [another affirmative action court case] and the 10 percent plan, it looked on the African-American side that it averaged about 5 percent per year, really, pretty steadily. Then after Hopwood and 10 percent it went down a little bit, not a lot, but it went down to about 3 and a half percent, 4 percent, maybe. And then they introduced Grutter, and it’s back up to 5 percent.”
The U.S. Court of Appeals for the Fifth Circuit in New Orleans has twice upheld the Texas affirmative action program. Each time, the Fifth Circuit ruled that the program makes only limited use of race, and serves the university’s interest in a racially and culturally diverse student body in a way that complies with Supreme Court mandates.