Article: Fisher v UT: diversity in college admissions upheld, but for how long

Date: June 25, 2013

Publication: Politics of Raising Children Column, The Washington Times

By : JJ Ghatt


Many have already hyperanalyzed the U.S. Supreme Court’s decision yesterday in Fisher v. University of Texas in which a white woman denied admission to the University said its policies of considering race among many other factors was impermissible and violated the 14th Amendment’s Equal Protection Clause.


Fisher did not qualify for admission to UT under its Automatic Admission to the top 10% of all high school graduating classes.

She also was not admitted under a second-tier policy in which those not meeting a minimum SAT/ACT score and GPA threshold could be considered for admission among a menu of diversity and holistic factors. This second-tier standard looks at the applicant as a whole and her/his possible contribution to the student body.


Race is one issue considered, as is military service, honors and awards, extracurricular or community activities, publications, history of overcoming disadvantage, personal essays, leadership qualities, extracurricular activities, community service, family responsibilities, family and school socio-economic status, whether the applicant comes from a single-parent home, whether she worked during high school, whether languages other than English are spoken in her home, and other factors.


So despite being the child of two alums of UT and having her heart set on admission, Fisher was not admitted. She did not blame those who got in on non-racial factors. Rather, she headed to court to claim rights under a clause created to protect African Americans from being discriminated against as was the case in Jim Crow South and historically. Oh the irony.


UT, like other colleges, believes diversity is a valuable criteria for higher education.


The 1978 University of California v. Bakke  US Supreme Court case was the first to recognize the value to diversity in higher education and that it was a compelling state interest.  The Supreme Court upheld this notion in subsequent cases, Grutter v. Bollinger in 2003 and Parents Involved in Community Schools v. Seattle School District No. 1 in 2007.


The Supreme Court issued the opinion and essentially punted on procedural and substantive grounds, saying the Fifth Circuit Court of Appeals that upheld the UT admission policy did so under the wrong standard. The standard when race is used as a factor in college admission for benefit is “strict scrutiny”: The government must prove that the law is narrowly tailored to meet a compelling state interest.

The earlier body of affirmative action cases have consistently established and upheld that universities should have the discretion in applying its own means of pursuing an interest in advancing diversity as part of its compelling interest it seeks to advance. Schools still have to narrowly tailor their policies to advance that interest.


The court upheld diversity as a compelling, but said the lower court did not apply the strict scrutiny test. Rather, the court simply inquired if the policy was in good faith and required the appellant to rebut that presumption.


Justice Elena Kagan recused herself from the case because she was involved with the case in the lower levels as Solicitor General of the U.S.


More liberal leaning justices Sonia Sotomayor and Stephen Breyer joined the more conservative leaning Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts to vote in favor of kicking the case back down, while Justice Ruth Bader Gingsburg dissented.


Ginsburg said the court should simply have upheld the UT’s policy point blank, noting that there is really no such thing as a race neutral policy.


“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious,” Gingsburg said of Texas’s “top 10% plan” granting admission to students in the top 10% of each high school, noting that it was specifically designed to capitalize on the state’s highly segregated school systems. “It is race consciousness, not blindness to race, that drives such plans,” Ginsburg wrote.


Justice Thomas joined solely because he agreed Strict Scrutiny should have been applied but he wrote a concurring opinion essentially saying there is no value in increasing diversity at schools and that he would overrule Texas’s 10% plan altogether and overruled Gutter at the same time which allows universities to even consider diversity as an animus in crafting admission policies.


Associate Justices Clarence Thomas and Antonin Scalia.


The case is a minimal win for affirmative action because the majority opinion noted that diversity is still a compelling interest. It could further be a win for affirmative action if the University is able to make its case that permitting race as one of many “plus factors” it uses when considering admitting those without the numerical minimum for an auto-admit is a narrowly tailored approach at the federal level.

If it cannot make this showing, anti-affirmative action proponents will essentially have won because that means it will be even harder to craft a policy that can withstand scrutiny. The implications could  trickle down to undo some workplace policies as well.


Businesses that receive government grants, contracts or funding could be forced to adjust, change or altogether dismantle their affirmative action or diversity in contracting policies. But then, they would be able to breathe a sigh of relief over their fear of getting sued by whites denied benefits or contracts citing reverse discrimination.


Notwithstanding, these employers would still be subject to EEOC laws and rules which protect minorities and women from discriminatory hiring, promotions and workplace practices.


However, affirmative action and UT will lose if on remand Fisher can show the school leans on race when the school population has a racial imbalance that administrators think is too exclusionary of racial minorities  and that it then accept more of those with the racial “plus factor” to readjust that balance to be more racially diverse.


There is a likely propensity that this rebalancing occurs although it is neither published nor acknowledged.


We will then get into the scenario of a federal judge being left to interpret and read more into schools’ actions and construe their own conclusions.


No doubt this outcome will be colored by their inherent already existing perceptions and prejudices, but we will never know.


These issues will forever be complex and unresolved, even after a decision is handed down.


The best result would be for the courts to continue to defer to Universities, but of course that will not pacify affirmative action opponents. 

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Article: Supreme Court to rule on Affirmative Action

Publication: Politics of Raising Children column, The Washington Times

Date: June 27, 2012


In addition to a ruling on the constitutionality of the Affordable Healthcare law ( Obamacare) law tomorrow,  the United States Supreme Court is also set to hand down a ruling on an Affirmative Action case which may impact parents with teens heading to college in the near future.


An Anglo-Saxon white female student who was rejected admission into the University of Texas argued that African American and Hispanic students with inferior credentials were admitted over her using via the school’s Affirmative Action plan.


This case, Fisher v. University of Texas, was a follow up to the last Texas Affirmative Action case the 5th Circuit Court of Appeals decided, known as Hopwood v. Texas In that 1996 case, the Court ruled the school system’s Affirmative Action program was not narrowly tailored enough to meet a compelling state interest and then overruled a diversity admission policy at the law school.  It stated the school could not use race as a factor in admission decisions.


To get around that decision and do its part to increase Black and Latino admissions, the University of Texas system opted on a plan to admit the top 10 percent of all high schools. That move caused minority student admissions to jump 21 percent.


However, when the US Supreme Court took up Affirmative Action in 2003 through Grutter v. Bollinger, the majority stated that diversity is an interest that schools can and should promote as long as they meet the strict standard: that its policy was narrowly tailored to meet the compelling interest in diversity promotion.


After that case, Texas expanded its Affirmative Action efforts beyond just the top 10% and started taking into account diversity when making admission decisions. It operated under that program until 2008 when Fisher sued after she was denied admission.


There are up to several dozen factors that each school use to determine who gets admitted and it’s easy for those who get rejected to point to race and use that as a basis for a judicial challenge.  And that’s what happened here.


Fisher claims that the Affirmative Action policy at the University of Texast has become a racial quota system. The dissenting judge in the case below noted that use of a racial animus opens the door to numerical admission based on race alone. But, that was the minority opinion. Fisher managed to push her case up the ladder and was granted a review by the Supreme Court.


What will stand out this round is that the Supreme Court that heard the University of Michigan case, thereby empowering Texas to change its policy back then, is not the current court of 2012 which is dominated by conservatives, 5-4.


It gets even more complicated because Justice Elena Kagan, who was the solicitor general in the case below, has recused herself from the case.


That maneuver stacks the court with even more conservative Justices, increasing the odds that Affirmative Action may be struck down in its entirety or, at the least, in more extreme ways than before. Justices John RobertsAntonin ScaliaClarence Thomas and Samuel Alito have taken anti-Affirmative Action stances in prior decisions.  Justices Sonia SotomayorRuth Bader Gingsburg and Stephen Breyer are more liberal and are more likely to uphold the Texas Affirmative Action program.  Hence, this decision will hinge on Justice Anthony Kennedy, who under the current make up of the court has become the “swing” vote, though he’s voted with the conservative wing 63% of the time since 2010.  However, he occasionally sides with the liberal wing, according to the SCOTUS Blog.


It’s worth noting that Kennedy has voted against  Affirmative Action in the past. In 1989, he voted in City of Richmond v. J.A. Croson Co. against federal contractors setting aside 30% of contracts for African Americans.  Also that year, he voted with the majority to allow disgruntled White workers in Martin v. Wilks to challenge Affirmative Action settlements. That same year, he also voted in Wards Cove Packing v. Atonio which challenged numerical underutilization of women or minorities.


Several groups have filed amicus briefs in this potentially landmark case.


Affirmative Action programs will not necessarily be automatically ruled unconstitutional, per se.  But, the court may look to Texas’ Affirmative Action program, invalidate it, and possibly set up a higher bar for other colleges and universities to climb in order to use race in admission.


Such a move could, in effect, invalidate all government Affirmative Action programs nationwide.


Conservative think tanks are watching and hoping this will be the year that Affirmative Action goes by the wayside permanently.  And it’s one more perfect hot button issue for the elections, just in time to see if the first Black president gets re-elected.


The sad part, perhaps, is no matter how it turns out, there are many people out there who will assume most people of color with higher education degrees could not have gotten into college on their merit and scholastic scores alone. Even though they would be among the mere 35% of Americans with college degree, they will be presumed by some as Affirmative Action admits who were really not qualified to get into college on their merit and must be taking the spot of a white person. Even if they got into school based on merit alone, some people will automatically lump them in with other Affirmative Action admits.

That’s just lazy thinking.

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