Politics & Policy

In Fisher, Another Blow to Equal Opportunity

Abigail Fisher outside the Supreme Court, December 9, 2015 (Kevin Lamarque/Reuters)

‘If at first you don’t succeed,” advises the proverb, “try, try again.” The University of Texas at Austin should consider adopting that as its motto. After seeing its race-based admissions policies swatted down three times — in 1950, 1996, and 2013 — the Lone Star State’s flagship university has finally managed to win the Supreme Court’s approval. Affirmative action is, for the moment, here to stay.

This outcome is the result of decades of judicial confusion. In 1978, in Regents of the University of California v. Bakke, the Court struck down rigid racial quotas but recognized the consideration of an applicant’s race as a valid criterion for admission. A quarter century later, in Grutter v. Bollinger (2003), the Court built on this precedent and allowed that race could be a “plus factor” in admissions decisions, provided there was also an “individualized, holistic review of each applicant’s file.” Sandra Day O’Connor, writing for the majority, noted that such practices would be subject to “strict scrutiny” by the courts, and that the use of race in admissions should be a last resort when aiming to achieve the “educational benefits that flow from a diverse student body” — but that universities should also be afforded “deference.”

In the case of UT, an “individualized, holistic review” process is applied to about 25 percent of admittees. The other 75 percent are admitted under the Top Ten Percent Rule, a Texas law — prompted by UT’s previous legal battles on this front — that requires public universities to admit any applicant who graduates in the top 10 percent of his high-school class. (The limit was later changed to 8 percent for UT-Austin.) Ironically, this effort to forward the interests of “diversity” in the classroom depends on, and incentivizes, the de facto segregation of Texas neighborhoods.

In 2008, Abigail Fisher, who was not in her graduating class’s top decile, applied for admission to UT and was denied, while non-white applicants with lower grades were admitted. She filed suit, alleging that the race-conscious admissions process that is applied to all applicants not admitted under the Top Ten Percent Plan disadvantaged her and other white applicants.

In 2013, the Supreme Court remanded Fisher v. University of Texas to the Fifth Circuit on the grounds that the lower court had granted the university too much deference. The Court emphasized that “strict scrutiny” must apply not only to the program’s goal, but also to its workings. On its second look, though, the Fifth Circuit re-endorsed the university’s policies, and the Supreme Court took the case back up last fall.

#share#Neither the university’s policies nor the legal threshold they must meet changed between 2013 and 2016, but what the Court rejected three years ago it has now blithely affirmed.

For example, the majority largely abandons the need for evaluable “strict scrutiny” metrics. UT contends that a race-conscious admissions policy is necessary to advance, in the words of the majority opinion, “the destruction of stereotypes, the ‘promot[ion of] cross-racial understanding,’ the preparation of a student body ‘for an increasingly diverse workforce and society,’ and the ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’” How any of these aims lends itself to judicial scrutiny is anyone’s guess. But the majority nonetheless applauds them as “concrete and precise goals.”

The majority also ignores that the university itself has been inconsistent in articulating the aims of its policy. It has cited the need for a “critical mass” of black and Hispanic students, but refused to define that term, and it cites a purported underrepresentation of Asian Americans in certain specific classes as justification for its plan, though the plan discriminates against Asian-American applicants.

In promoting race-conscious admissions, both UT and the Court endorse noxious stereotypes about minority students.

Furthermore, in promoting race-conscious admissions, both UT and the Court endorse noxious stereotypes about minority students. In 2013, the university argued before the Court that its admissions policy was necessary if it hoped to admit “the African-American or Hispanic child of successful professionals in Dallas” (the idea presumably being that because that child is more likely to be in a mixed-race school, he is less likely to be in the top 10 percent). The Fifth Circuit, in its reevaluation, approved of this argument, noting that minorities automatically admitted under the Top Ten Percent Plan — minority students whose high-school careers were spent competing largely against other minority students, went the logic — were not competitive with those admitted under holistic review in terms of “records of personal achievement” and “unique skills.” The Supreme Court, by affirming this reasoning, has effectively adopted the position that UT needs race-conscious admissions, at least in part, so that it can enroll a higher quality of minorities.

The Supreme Court did not have to endorse this logic. In fact, the Court had an obvious reason to strike down UT’s admissions policies: They are illegal under the Civil Rights Act of 1964, which states that no person “shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” But rather than follow the letter of the law, and the precedent of resolving cases wherever possible on statutory rather than constitutional grounds, the Court has chosen to entrench a woolly interpretation of the 14th Amendment as permitting more or less unlimited room for the redress of racial grievances. There is little reason that, under this precedent, racial preferences should not be expanded beyond university admissions committees to other federally funded entities.

In Fisher, the Court had the opportunity to follow the law and promote a genuinely race-blind society. Instead, it has helped to perpetuate a regime that weighs the color of a student’s skin more heavily than the contents of her report card.


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