DIVERSITY REVISITED: FISHER V. UNIVERSITY OF TEXAS AT AUSTIN

DIVERSITY REVISITED:  14-981 FISHER V. UNIVERSITY OF TEX. AT AUSTIN (06/23/2016)

Fisher said in news reports that she hoped for the day universities selected students “solely based on their merit and if they work hard for it.” But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.

Criteria to examine the validity of a diversity decision is the star around which the admissions profession revolves, and a major theme in Fisher v. University of Texas, a case now before the U.S. The U.S. Supreme Court heard arguments in the fall of 2015 in Fisher v. University of Texas at Austin, a case that centers on the questions of whether and how race may be used in college-admissions decisions. The court is expected to issue its ruling this spring or early summer. Wondering what this case means for colleges?

Ms. Fisher, who is white, is accusing the University of Texas of illegally discriminating against her because she was part of a pool of applicants who were evaluated using criteria that gave extra consideration to black and Hispanic applicants. She did not qualify for automatic entry to the university under the state’s “Top 10 Percent Plan,” which guarantees admission to any Texas public college for residents in the top tenth of their high-school class.  A robust discussion of this issue revolves around a six-tier test:

  1. How colleges may use race in admissions decisions.
  2. Officials assess their own race-conscious admission policies
  3. Court of public opinion is as crucial as any court of law.
  4. Describing how diversity is essential to student success during and after college.
  5. Showing how race-conscious policies align with—and achieve—specific educational outcomes.
  6. Telling a story that’s broader than test scores and grade-point averages.

Fisher II was decided by 4-3. The majority opinion was authored by Justice Kennedy and joined by Justices Ginsburg, Breyer, and Sotomayor. The majority upheld the lower court. The opinion summarized that Fisher I set three controlling principles:

  1. Strict scrutiny of affirmative action admissions processes.
  2. Judicial deference to reasoned explanations of the decision to pursue student body diversity.
  3. No judicial deference for the determination of whether the use of race in admissions processes is narrowly tailored.

The university should regularly evaluate available data and “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”  The petitioner’s, Abigail Fisher’s, four arguments against the admissions policy were subsequently refuted.

(1) Petitioner claims that the University has not articulated its 

Compelling interest with sufficient clarity because it has failed to

State more precisely what level of minority enrollment would constitute

A “critical mass.”

First, the court upheld that the university’s rationale for diversity-associated goals was sufficiently articulated, despite a lack of a quota.

(2) Petitioner also claims that the University need not consider

Race because it had already “achieved critical mass” by 2003 under

The Top Ten Percent Plan and race-neutral holistic review.

Second, the court found that the university presented sufficient evidence to show that in the seven years between the Hopwood (Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), was the first successful legal challenge to a university’s affirmative action policy in student admissions since Regents of the University of California v. Bakke, 438 U.S. 265. 1978). decision and the implementation of the combined academic-holistic admissions process, race-neutral policies and increased outreach efforts were insufficient to achieve these goals.

(3) Petitioner argues further that it was unnecessary to consider

Race because such consideration had only a minor impact on the

Number of minority students the school admitted.

Third, the court found that “consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class,” and that such a limited effect “should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

(4) Finally, petitioner argues that there were numerous other

Race-neutral means to achieve the University’s goals.

Finally, the court found that the petitioner failed “to offer any meaningful way in which the University could have improved upon” its prior race-neutral efforts to achieve diversity-associated goals, including expanding the Top Ten Percent rule, which would leave, as quoted from the Grutter decision (Grutter v. Bollinger, 539 U.S. 306 (2003), was a landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. Justice Sandra Day O’Connor, writing for the majority in a 5–4 decision and joined by Justices Stevens, Souter, Ginsburg, and Breyer, ruled that the University of Michigan Law School had a compelling interest in promoting class diversity.

The court held that a race-conscious admissions process that may favor “underrepresented minority groups”, but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents of the University of California v. Bakke.) “a gap in an admissions process seeking to create the multidimensional diversity” envisioned by the Bakke decision.

In conclusion, the majority reiterated that the University has an ongoing obligation to use available data “to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”

In a lengthy dissent joined by Chief Justice Roberts and Justice Thomas, Justice Alito wrote that the university’s stated interests in diversity were not specific and were “shifting, unpersuasive, and, at times, less than candid.” Additionally, Alito reiterated the circuit court dissent’s claim that the Circuit Court majority believed that automatically admitted minority students were “somehow more homogeneous, less dynamic, and more undesirably stereotypical than those admitted under holistic review.”

Justice Thomas also authored a dissent. In this dissent, he reiterated the thoughts expressed in his concurrence in Fisher I, namely that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

Cited Notations

  1.  “Thoughts on today’s Fisher II Supreme Court oral argument on affirmative action”. Washington Post. Retrieved 2016-04-27.
  2. Jump up^ “The mystery of Fisher II review”. SCOTUSblog. 2015-07-21. Retrieved 2016-04-27.
  3. Jump up^ Kahlenberg, Richard D. “Affirmative Action Is in Deep Trouble”. The Atlantic. Retrieved 2016-04-27.
  4. Jump up to:a b “Fisher II” reaches the Court. Scotusblog.com February 11th.
  5. Jump up^ Richey, Warren (February 21, 2012). “Affirmative action in college admissions goes back before Supreme Court”. The Christian Science Monitor.
  6. Jump up^ Wermiel, Stephen (October 11, 2011). “SCOTUS for law students: Barbara Grutter, meet Abigail Fisher”. SCOTUSblog.
  7. Jump up^ “State Adjusts UT Admissions Policy to ‘Top 7 Percent'”. Retrieved 27 September2016.
  8. Jump up^ Haurwitz, Ralph K. M. (February 21, 2012). “UT’s race-conscious admission policy facing Supreme Court test”. Austin American-Statesman. Archived from the original on April 29, 2012.
  9. Jump up^ Jeffrey Toobin. “The Other Big Supreme Court Case”. The New Yorker.
  10. Jump up to:a b c d e “Joint Appendix, Abigail Noel Fisher v. University of Texas at Austin (Case 11-345)” (PDF). The Supreme Court of the United States. p. 65a–66a. Retrieved October 10, 2012.
  11. Jump up to:a b Liptak, Adam (October 15, 2011). “College Diversity Nears Its Last Stand”. New York Times.
  12. Jump up^ Abigail Fisher, et al. v. State of Texas, et al. (PDF) (No. 09-50822), United States Court of Appeals, Fifth Circuit, January 18, 2011
  13. Jump up^ Farmer, Liz (February 21, 2012). “U.S. Supreme Court to hear case on UT admission policies”. The Daily Texan.
  14. Jump up^ “Order on the petition for rehearing en banc”, United States Court of Appeals for the Fifth Circuit.
  15. Jump up^ Petition for Certiorari Fisher v. University of Texas at Austin. Retrieved June 25, 2013.
  16. Jump up^ 09-50822 ON PETITION FOR REHEARING EN BANC 5th Circuit Court of Appeals, (2014).
  17. Jump up^ Bouie, Jamelle (2015-06-29). “Easy AA”. Slate. ISSN 1091-2339. Retrieved 2017-08-03.
  18. Jump up^ Sherman, Mark (June 29, 2015). “Supreme Court Will Re-Hear Texas Affirmative Action”. ABC News. AP.
  19. Jump up^ Denniston, Lyle (December 9, 2015). “Argument analysis: Now, three options on college affirmative action”. SCOTUS Blog.
  20. Jump up^ Mencimer, Stephanie (December 9, 2015). “Justice Scalia Suggests Blacks Belong at “Slower” Colleges”. Mother Jones.
  21. Jump up^ Hennessy-Fiske, Molly (December 12, 2015). “For black students at Texas, Supreme Court remarks are a burden added”. Los Angeles Times.
  22. Jump up^ Bernstein, Roberta (December 13, 2015). “U. of Texas Supreme Court fight gets hashtag: #StayMadAbby”. USA Today College.
  23. Jump up^ https://www.law.cornell.edu/supremecourt/text/11-345#writing-11-345_CONCUR_5
  24. Jump up^ https://www.law.cornell.edu/supremecourt/text/14-981#writing-14-981_DISSENT_4

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