The Fight Against Affirmative Action Continues: Fisher v. University of Texas at Austin, Round Two

BY CAITLIN GILES — Many are familiar with Fisher v. University of Texas at Austin (Fisher I), the lawsuit that challenged the University of Texas (“UT”) at Austin’s use of racial preferences in its admissions system. The case went all the way to the Supreme Court in 2013 before being remanded back to the Fifth Circuit. In a 2-1 split, Judge Higginbotham finally held that the use of race in UT Austin’s admissions system was constitutional. Unfortunately, but certainly not surprisingly, the case may not end there. On February 10, 2015, Abigail Fischer filed her second petition to the Supreme Court for a writ of certiorari on the Fifth Circuit’s latest ruling. Fisher asks the Supreme Court to decide whether the Fifth Circuit properly applied the test of strict scrutiny mandated by Fisher I. Despite having already graduated from Louisiana State University (“LSU”) and despite the fact that race had absolutely nothing to do with her rejection from UT Austin, Fisher still believes the University’s admissions system is unconstitutional due to its consideration of race as one of several factors. Although it is unclear whether the Supreme Court will grant certiorari again, the potential for Fisher II raises some interesting questions about the Supreme Court’s role in shaping the current status of affirmative action in higher education, and the sad prevalence of white privilege in the American educational system.

Why is Fisher challenging the Fifth Circuit again?

The history of Fisher I provides the answer. Fisher I represented the social movement against race-based preferences in college admissions. Organizers behind this movement recruited Abigail Fisher and targeted the UT Austin system to achieve its desired outcome: the end of race-conscious college admissions policies. However, UT Austin might not have been the best tester case; it uses a two-tiered admissions system, whereby race is just one of many factors considered. In 2008, the year Abigail Fisher applied to UT Austin, the University admitted 81% of its freshman class from the first tier of the system: the Ten Percent Program. This program was enacted by the Texas Legislature to allow the state’s students who graduate within the top 10% (and in more recent years, top 7% or 8%) of their class to be automatically admitted, regardless of any other factor. Fisher did not graduate in the top ten percent of her high school graduating class and was thus reviewed in the second tier: the holistic review process.

In the second tier, all students are graded on a multi-layered rating system, which weighs academic success, personal achievement, and special circumstances, such as socio-economic hardship and race. Fisher earned a 3.59 GPA, an 1180 on her SAT (Standardized Achievement Test), and graduated 82nd in her class, or in the top 12%; needless to say, she was not admitted. Yet, Fisher’s “whiteness” had no real effect upon the university’s decision, as she would not have gained admission regardless of her racial classification. Thus, despite being a very poor representative of reverse discrimination, Abigail Fisher challenged the second-tier of UT Austin’s admission policy because she felt that the inclusion of racial preferences was facially discriminatory and thus violated the Fourteenth Amendment’s Equal Protection Clause. When the Supreme Court granted certiorari on Fisher I, the future of affirmative action in higher education was far from clear.

In a 7-1 opinion, the Supreme Court ignored the merits of the case, instead opting to remand to the lower courts after reaffirming its stance that race-based admissions policies are subject to the highest form of scrutiny. Specifically, Fisher I places the burden on the university to prove that the racial classification admissions criteria are narrowly tailored, requiring proof that the policy is “necessary” to achieve the educational benefits of diversity. After the Supreme Court remanded this issue back to the Fifth Circuit, that court ultimately held that UT Austin’s holistic review was a “necessary” addition to the Top Ten Percent plan and that no other race-neutral approach could promote the school’s interest in racial diversity. Clearly, Fisher’s team was not pleased with the outcome and is thus asking the Supreme Court to reverse the decision. Although seemingly a frivolous waste of time, the challenge posed by the petition is clear. If the Supreme Court lets the Fifth Circuit decision stay, it is blessing UT Austin’s version of racial preferences in admissions policies. However, if the Court does grant certiorari, it will once again need to grapple with the polarizing concerns of affirmative action.

What is the Current Status of Affirmative Action?

Fisher I is not the first time (and likely not the last time) that the Supreme Court granted certiorari to decide the constitutionality of race-based policies in higher education. For example, in Schuette v. Coalition to Defend Affirmative Action, the Court upheld a Michigan voter initiative that banned the use of affirmative action in higher education. Although the Court chose not to rule on the constitutionality of affirmative action itself, it did hold that states could end the use of race-based admissions polices without violating the Constitution. Similar laws have now been incorporated in seven other states: Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma, and Washington.

In addition to the effect of the Supreme Court’s decision in Schuette, there are now two complaints filed against Harvard University and the University of North Carolina at Chapel Hill, both of which are trying to finish what Fisher I started—abolish affirmative action policies as unconstitutional. The same counsel who brought Fisher I, Edward Blum, spearheads both of these efforts through his organizations, Students for Fair Admission and the Project for Fair Representation. Deviating from the approach taken in Fisher, these cases generally involve more appealing plaintiffs because they involve high achieving students (at least, more qualified than Abigail Fisher) who can draw more sympathy for their cause. Although the outcome of these cases is uncertain, they have the potential to further dismantle affirmative action programs in higher education.

Affirmative Action and the Lingering Effects of White Privilege

Fisher I and II represent the ever-pervasive issues of injustice and white privilege, which America cannot seem to escape from. The problem of race remains, and yet the majority culture refuses to acknowledge these realities or else ignorantly believes that white students are disadvantaged in comparison to their colored counterparts. Educational inequality is real and widespread; yet, those who wish to challenge this small amount of assistance—provided by affirmative action policies to level the playing field for disadvantaged minority students—are validated and legitimized by the Supreme Court.

One can only hope that if the Supreme Court does decide to grant certiorari on Fisher II, the Justices who originally dissented and pushed for a more balanced opinion in Fisher I will be able to form a majority and affirm UT Austin’s use of race as well-balanced and constitutional. However, given the Court’s decision in Schuette and Fisher I, it seems unlikely that it will provide support to affirmative action policies in higher education.

As Justice Sonia Sotomayer so eloquently stated in her dissent to Schuette,

Race matters. . . . Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. . . . And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. . . . Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.” . . . The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

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