Affirmative action: Fisher case could have far-reaching effects

Supreme Court to consider affirmative action lawsuit against the University of Texas


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Editor’s note: This is the second in a four-part series about affirmative action at the University of California.

The U.S. Supreme Court heard arguments in the case of Fisher v. University of Texas at Austin Wednesday, a debate examining the constitutionality of considering race in the university admissions process. The court’s decision could have far-reaching effects on affirmative action in higher education nationwide, including at the University of California.

Abigail Fisher, a white student, brought a lawsuit against the University of Texas at Austin claiming she was rejected for admission in 2008 due to discrimination prohibited by the 14th Amendment. The University California filed an amicus curiae brief in support of the University of Texas in August.

Texas students in the top 10 percent of their high school class are guaranteed admission to one of the University of Texas’ campuses. Students considered for the remaining number of seats are subject to a “holistic review” admissions process that considers additional factors, including race. Fisher, who was not in the top 10 percent bracket, argues that she was rejected from the university’s flagship Austin campus because the admissions process considers race.

According to a transcript of the oral arguments made before the court Wednesday morning, the debate centered primarily on the standards for consideration of race in university admissions set in the 2003 Supreme Court decision in Grutter v. Bollinger.

In 2003, the 5-4 Supreme Court decision in Grutter allowed a “narrowly tailored” consideration of race in the admissions process in the service of a “compelling interest” in diversity.

During Wednesday’s oral arguments, Bert Rein, Fisher’s lawyer, argued that UT Austin’s admissions policies fail on two counts that the strict judicial scrutiny that any race-based policies concerning the 14th Amendment require: that considering race explicitly in admissions is unnecessary and that the holistic review plan was not “narrowly tailored.”

Rein argued that additional diversity provided by a holistic review that considers race was not large enough to justify the use of race.

Justice Sonia Sotomayor suggested that though Rein does not want to overturn Grutter, he hopes to “gut it.”

Justices John Roberts, Samuel Alito and Anthony Kennedy questioned how UT Austin would know it had achieved “a critical mass” of minorities — a point at which affirmative action policies would no longer be necessary, according to the court’s decision in Grutter.

Greg Garre, the lawyer for the University of Texas, argued that any diversity achieved under the 10 percent program is partly the effect of segregation between Texas high schools.

“Texas’ de facto segregation is why you’ve seen some success with percentage plans,” said Kedra Ishop, director of admissions at UT Austin, in an interview. “There are areas of the state that are (largely) minority and are ridiculously under-resourced.”

Since oral arguments are complete, unless they decide to throw the case out, the justices will confer and issue a decision.

Former Supreme Court Justice Sandra Day O’Connor led the majority opinion in Grutter v. Bollinger but has since been replaced by Justice Alito. Since Justice Elena Kagan has recused herself from Fisher, the remaining eight justices could split their decision 4-4.

In that case, the ruling from the lower court is affirmed, and no new precedent is set, leaving the University of Texas’ policies intact.

The swing vote on the court is Justice Anthony Kennedy, said Jesse Choper, Earl Warren Professor of Public Law at UC Berkeley’s law school.

“Kennedy is not the easiest justice to predict … if they’re going to get anyone on the right, they’re going to get Kennedy,” Choper said.

In a case reviewed by the Supreme Court in 2007, Parents Involved In Community Schools v. Seattle, Kennedy argued that “it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”

“There’s an in-between approach that Justice Kennedy ascribes to — that you can consider race only when you have taken all other race-neutral approaches,” said David Birnbaum, chief deputy general counsel for the University of California. “Our amicus brief is particularly directed to that question.”

Though race is specifically excluded from the criteria considered for admission to UC by Proposition 209, UC Berkeley’s “holistic review” process could be jeopardized if the court decides in favor of Fisher.

“California cares because … if the court slams the door on holistic review, someone might decide to take a look at what Berkeley and UCLA are doing,” said David Kirp, a professor at the UC Berkeley Goldman School of Public Policy.

This fall, six UC campuses will be using a holistic review for their admissions processes, said UC spokesperson Dianne Klein. The others will use another form of “comprehensive review.”

“The shift to comprehensive review and now to the holistic version … represent the most significant changes to our admission policy over the past 15 years — since the implementation of Prop. 209,” Klein wrote in an email.


Contact Gautham Thomas at [email protected].

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  • Craig John Alimo

    more resources on affirmative action here:

  • I_h8_disqus

    Affirmative action is a very poor way to try and get more non-whites and non-Asians into Cal. Using racism will continue racism. We would have much more integration of schools by now if California handed out resources more fairly to its K-12 schools. For example, San Francisco has horrible segregation issues, because it gives so much more money to its magnet schools like Lowell, which are predominately Asian and white. The first thing to do is to change how K-12 education resources in places like San Francisco are distributed so that all socioeconomic groups are given the same education. The next thing to do is to change the cultures within certain demographics so that education and career success are top priorities.

  • JustaWhiteMom

    The most outrageous thing about affirmative action is that it applies to non-white immigrants. What kind of country discriminates against its own founding population in favor of other races? A country that is trying to get rid of its founding population that’s what. Its geNOcide.
    Anti-racist is a code word for anti-white.

    • I_h8_disqus

      Affirmative action doesn’t just apply to non-white immigrants. For example, most Asians would not be given an advantage if affirmative action was allowed. It is mostly directed at helping blacks and Latinos who have been US citizens for more than one generation. I also recognize that affirmative action isn’t about getting rid of white people. It is just a poor way of trying to help blacks and Latinos achieve success.

      • JustaWhiteMom

        I don’t much care who it is “mostly directed” at. Discrimination against the founding population of the United States in favor of non-white immigrants is outrageous. And yes, it is about getting rid of white people. There has been a demographic war going on against white people for some time. This has been admitted several times.
        “The non-Europeanization of America is heartening news of an almost transcendent quality.”
        -Ben Wattenberg
        Care to see more evidence?

        • I_h8_disqus

          I agree that discrimination is outrageous, but I don’t just apply that statement to whites. I have no problem with everyone having a chance.

          I don’t think you can claim a “war” is going on, when you are just pulling “evidence” from whatever anti-Jewish site you frequent. If you are Christian, then you have nothing to worry about, because everyone is created in the image of God. If you are an atheist, you have nothing to worry about, because evolution is all about the strongest surviving, and that will continue to be the rule. So you don’t need to worry no matter what.

          • JustaWhiteMom

            No. Evolution is the result of a struggle for survival. Anti-whites demand whites be indifferent to our own survival. That is an outrageous demand on us that betrays a desire, quite frankly, to see us gone. Nor does it matter that everyone is made in the image of God. God made WHITE PEOPLE. Why would He want us to go extinct? Your children were made in the image of God, but I love my own children more. That is MY PREROGATIVE!

            Here is some more evidence of a global conspiracy to genocide whites:

            “The strengthening of multicultural or diverse Australia is also our most effective insurance policy against anti-Semitism. The day Australia has a Chinese Australian Governor General I would be more confident of my freedom to live as a Jewish Australian.”

            -Miriam Faine

            “I think there is a resurgence of anti-Semitism because at this point in time Europe has not yet learned how to be multicultural. And I think we [the Jews] are going to be part of the throes of that transformation, which must take place. Europe is not going to be the monolithic societies they once were in the last century. Jews are going to be at the centre of that. It’s a huge transformation for Europe to make. They are now going into a multicultural mode and Jews will be resented because of our leading role.”

            -Barbara Lerner Spectre

            EU should do its “best to undermine” the “homogeneity” of European states as has been done in the US, Australia, and New Zealand.

            -UN Migration Chief Peter Sutherland (works for Goldman Sachs).

            “There is no place in modern Europe for ethnically pure states. That’s a 19th century idea and we are trying to transition into the 21st century, and we are going to do it with multi-ethnic states.”

            -General Wesley Clark

            “In Florida, there’s going to be hundreds of thousands more Latinos and African-Americans voting than there were last time. The demographics of some of these states are already improved, through nothing we’ve done.”

            -David Plouffe, Senior Advisor to Barack Obama

            “Our most important task ahead is to deconstruct the majority, and we must deconstruct them so thoroughly that they will never be able to call themselves the majority again.”

            – Norwegian social anthropologist Thomas Hylland Eriksen
            Care to see more?

          • I_h8_disqus

            Just curious why being white is so important? I don’t see anything about any race that would make me think that any of them are more important than the others. I can see some fringe Jews thinking that getting rid of white people would protect them from what happened in Germany, but if they were smart, they would recognize that every race would easily step in and call for the extermination of all Jews in the right situation. Arabs would gladly step in right now, and multicultural Europe is mostly a result of Arabs moving into the area. So the next Holocaust in Europe will be led by non-whites.

          • JustaWhiteMom

            “Just curious why being white is so important? I don’t see anything about any race that would make me think that any of them are more important than the others.”

            I want white people to continue to exist. I can’t believe that is actually is a controversial thing to say, but there it is. Not only are we a beautiful people, but we also have an ancient European heritage to carry on. Who else will do it? No one! We’d be lucky if the Muslims don’t blow up the Sistine Chapel when they take over,let alone maintain it.

            Besides, Europeans have an average 15 point higher IQ than the Muslims of the Middle East, North Africa, and Pakistan who are taking over the continent. Controls for socioeconomic status, twin studies, adoption studies, regression to the mean analysis, inbreeding depression analysis, and admixture studies all suggest that the 15 point black-white IQ gap in the US is genetic in origin. Even if it is environmental in origin, there is absolutely no evidence to suggest that any known or conceivable environmental intervention has helped or will help.

            Still it doesn’t matter, I don’t want whites race replaced even by the highly intelligent Chinese. I love my people because they are my people. It is shocking that this is actually controversial.

    • Anti white ? Anti equality

      founding population? I’m pretty sure Native Americans were the founding population of this country. It’s not anti white it’s called equality. Sorry that white people working for their accomplishments scares you so much

      • JustaWhiteMom

        The “Native Americans” founded nothing. White people built the United States as we know it today. So far as I know the “Native Americans” didn’t have so much as a written language when Europeans arrived here. Save your cultural relativist noble savage crap for someone stupid enough to believe it.

        • JNorton

          Bravo. More, more.

      • JustaWhiteMom

        If its about “equality” when are they going to start applying affirmative action to Jews? White Gentiles are far and away the most underrepresented ethnic group at Harvard because Jews hog the “white” quota. Google it. When are they going to start applying affirmative action to women, who often outnumber men two to one at universities? Its not about “equality”. Its about shoving whites, and particularly white males, out of power in the country our ancestors built from the ground up. The same crap is also happening in Europe and Australia. Its GeNOcide.

        Anti-racist is a code word for anti-white.

  • The biggest problem Affirmative Action has is that after 40 years, where are the results? Did Affirmative Action succeed for the past 40 years, or did it fail? When will racial preferences end, or is it permanent?

    It’s hard to tell Whites born after 1980 who have seen nothing but Affirmative Action that it’s good. I know an engineering student who’s the only White student in her class. They managed to get so many diversities to enrich their university, there are hardly any White students left. This is a clear “disparate impact”, but I’m not holding my breath for the DoJ to sue.

    No one in Japan proposes Affirmative Action to increase the “diversity”. Proponents of Affirmative Action claim to be anti-racist, but they are really anti-white. Anti-racist is once again just a codeword for anti-white.

  • Guest

    Hopefully, not only will the consideration of race in holistic admissions be barred, but so will the inherently racist top 10% admissions scheme which clearly is a violation of the Equal Protection Clause- rewarding applicants from typically low achieving URM high schools solely for being in the top 10% and thereby creating much higher standards for applicants from highly competitive White/Asian high schools, where a student at the 20th percentile could academically be at a higher academic level than a student in the top 10% at a low achieving high school. It used to be the top 10% of students in the state not in each school. The rationale for going to top 10% in each high school rather than top 10% in the state was racist at its core. This will affect UC’s recently enacted top 9% admissions scheme.

    • Guest

      There is a simple reason why the Court will not do that, and this is because even the plaintiff supports the 10% system, as noted in the article.

      • Calipenguin

        I don’t see where the plaintiff supports the 10% system. She merely says it is already working well to bring race into consideration so there’s no need to consider race again.

        • Guest

          To be more specific, the 10% system is not at issue in this case. Courts don’t address issues which neither side contests.

          “Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. That program is not directly at issue in the case.
          Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. The case concerns that second aspect of the admissions program.”

          • Calipenguin

            Oh, I know the 10% system is not at issue since the plaintiff is not contesting it. However, the plaintiff is bringing it up as a evidence of a remedy that already exists. That is why she says race should not be considered again during the holistic phase. This point is crucial in convincing some of the Supreme Court justices that UT is trying to throw in race again and again, at every possible juncture of admissions, until a de facto back door quota system is established.