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].