This morning, the United States Supreme Court announced its decision in Fisher v. University of Texas, one of the most-watched cases of this term. The 4-3 decision ended an eight-year challenge to UT’s admissions policies. KLRU’s documentary Admissions on Trial: Seven Decades of Race and Higher Education, directed by Lynn Boswell of Villita Media, examines the Fisher case in depth, tracing the history and evolution of the use of race in university admissions.
Today’s decision is a big win for UT. It’s also a big victory for supporters of affirmative action. The majority opinion not only supports the admissions system that was challenged in the Fisher case but also affirms the constitutionality of some limited consideration of race in university admissions nationwide.
The case began in 2008, when Abigail Fisher filed a suit after she was denied admission to The University of Texas. Fisher, who is white, argued that UT’s use of race in undergraduate admissions violated the Constitution’s guarantee of equal protection. The university defended its admissions system, arguing that it was narrowly tailored, necessary to achieve meaningful diversity and in line with decades of Supreme Court precedent.
The Court’s decision in her case is not a wholesale endorsement of affirmative action without limits. Rather, it supports the use of race in university admissions within narrow boundaries, and only after race-neutral measures have failed to achieve diversity. The Court did not rule on the constitutionality of UT’s Top 10% Rule. It also confined its support of UT’s use of race to the system in place at the time Fisher applied for admission.
Justice Anthony Kennedy, writing for the majority, offered support for UT’s argument that diversity is a “compelling interest” permitted under earlier rulings to create “an ‘academic environment’ that offers a ‘robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse work force, and acquisition of competencies required of future leaders.’”
His opinion emphasized universities’ need to balance diversity and equal treatment. He also looked to a 1950 case called Sweatt v. Painter – another focus of KLRU’s Admissions on Trial documentary — which integrated graduate schools at The University of Texas.
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
Kennedy went on to say that the university must continue to evaluate its use of race in admissions – that the Court’s support for the use of race in 2008 does not mean that the system will remain constitutional into the future. His message is that the opinion applies to a specific system, at a specific university, at a specific point in time.
The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; 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.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
The ruling surprised many who have been watching this case over the years. Justice Kennedy was widely seen as the swing vote in this case – a justice who has supported the concept of affirmative action in the past, yet never voted to uphold any specific affirmative action system that considered race. Seven justices voted in the Fisher case. Ginsberg, Sotomayor and Breyer joined Kennedy’s majority opinion. Alito, Roberts and Thomas dissented. Kagan was recused, because she worked on the case as solicitor general.
In a 50-page dissent, Justice Samuel Alito called the majority’s decision “remarkably wrong” and attacked both the facts and the arguments presented by The University of Texas. According to the dissent, The University of Texas failed in many ways to meet its obligations under the Constitution.
UT’s race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program furthers its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest. By accepting UT’s rationales as sufficient to meet its burden, the majority licenses UT’s perverse assumptions about different groups of minority students—the precise assumptions strict scrutiny is supposed to stamp out.
Abigail Fisher’s case was argued at the Supreme Court in December – the second time the Court heard her case. The first ruling came in May 2013, and returned the case to the Fifth Circuit Court of Appeals without a ruling on the details of the case. The opinion issued today ends an unusually long journey through the courts.
Dear UT Community,
This morning, the United States Supreme Court ruled in our favor in the case of Fisher v. The University of Texas at Austin, affirming the university’s right to continue using race and ethnicity as one factor in our holistic admissions process.
I am thrilled and gratified by today’s ruling that recognizes the constitutionality of the university’s admissions policy. The court has affirmed UT’s efforts to develop a diverse student body that brings with it educational benefits for all students. Our pursuit of excellence is grounded in the university’s public mission to provide the highest quality education for every student. Diversity is essential to carry out that mission. The educational benefits of diversity for all students enhance The University of Texas at Austin, the higher education community, and the nation.
As I said when the Supreme Court reviewed this case last December, race continues to matter in American life. It affects individuals and communities. We must make sure all of our students are able to excel in the wider world when they leave campus — educating them in an environment as diverse as the United States is one of the most effective ways to do so.
Gregory L. Fenves
In statement issued by the Project on Fair Representation, a not-for-profit legal foundation that supported Fisher’s case, both Abigail Fisher and the group’s president expressed disappointment with the ruling.
Abigail Fisher said, “I am disappointed that the Supreme Court has ruled that students applying to the Univ. of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”
Edward Blum, president of the Project on Fair Representation, said, “Racial classifications and preferences are one of the most polarizing policies in America today. As long as universities like the Univ. of Texas continue to treat applicants differently by race and ethnicity, the social fabric that holds us together as a nation will be weakened. Today’s decision is a sad step backward for the original, colorblind principles to our civil rights laws.”
Blum concluded, “This opinion is at odds with the very principles that were articulated just two years ago in the first Fisher case. What this opinion lacks in legal reasoning, it made up in contradictions.”
While today’s decision marks the end of the Fisher case, it does not end the debate about race and university admissions. Edward Blum’s group is backing two new cases that challenge the use of race in university admissions – one against Harvard and a second against the The University of North Carolina at Chapel Hill. Both were brought by a group called Students for Fair Admissions, and both allege unconstitutional discrimination against Asian and Asian-American students. Both complaints argue that race becomes a “defining feature” of those students’ applications, creating a bar for admission that’s far higher than it is for students from other ethnic groups. The Harvard case alleges a system that is effectively a quota, similar to quotas on Jewish students in the past, that places a ceiling on the number of Asian and Asian-American students admitted. Those cases have been largely on hold for months, awaiting a decision in Fisher. If they are allowed to move forward, they could become the next major challenge to the use of race in admissions. Stay tuned.