Affirmative Action at Austin: Take 2

If you were going to bet on the outcome of a Supreme Court case—much less the Court’s reasoning—you should avoid the Fisher case. It’s anyone’s best guess.

For the second time the Supreme Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.

Even though this case arises in the higher education context, the Supreme Court has decided relatively few affirmative action decisions so all are of interest to state and local governments that use race as a factor in decision-making.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index” he or she will be evaluated through a holistic review where race is one of a number of factors.

UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top ten percent of her class, admission. She sued claiming Austin’s use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause. She argued that using race in admissions is unnecessary because in the year she applied UT Austin admitted 21.5 percent minority students.

The Supreme Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.

When the Fifth Circuit relooked at UT Austin’s affirmative action plan again it concluded that it is narrowly tailored. The Top Ten Percent Plan works well at increasing minority student enrollment because Texas schools are so segregated. But a number of well-qualified students are excluded—specifically minority students who performed well at majority-white schools but aren’t in the top ten percent of their class. If race wasn’t considered during holistic review almost every student admitted would be white because of the test score gap between white and minority students. And as a result of holistic review a much higher percent of white students are admitted, but generally between 25-30 percent of the overall number of black and Hispanic students are admitted through holistic review.

A dissenting judge questioned much of the majority opinion most fundamentally arguing that while UT Austin claimed it is trying to achieve a “critical mass” of diverse students its definition of “critical mass” is unknown, unmeasurable, and unclear. So it is impossible to know whether UT Austin’s use of race is narrowly tailored to meet this goal. While the dissent said that “critical mass” isn’t a number it questioned whether the number of black and Hispanic students admitted through holistic review—216 out of 6,322—is large enough to contribute to UT Austin’s critical mass objective. The dissent also questioned the merits of assuming that minority students admitted via the Top Ten Percent Plan are “somehow more homogenous, less dynamic, and more undesirably stereotypical than those admitted under holistic review.”

Why did the Court take this case yet again (especially considering Abigail Fisher graduated from another university years ago, Justice Kagan will recuse herself again, etc.) and what will it say? The possibilities are mindboggling if not endless. Lyle Denniston discusses some of them on SCOTUSblog.