Fisher v. The University of Texas 2.0

Abigail Fisher and her eponymous affirmative action case headed to the SCOTUS last week, again. The question we’re all wondering with this news is: If the Court takes this case, are affirmative action policies in college admissions dead? Despite graduating from Louisiana State University almost three years ago, Fisher said it is her hope that the Justices take this case again and end what she and the Project on Fair Representation believe is the unlawful use of race in college admissions at the University of Texas, the school she sued after she was denied acceptance. The question they’re asking the justices to answer this time is “whether the Fifth Circuit’s re-endorsement of UT’s use of racial preferences in undergraduate admissions can be sustained under the 14th Amendment’s Equal Protection Clause.”

The Court punted in the 2013 decision, remanding the case back to the lower court

with specific instructions that the UT prove they’ve met the standard of strict scrutiny. Under this standard, the University must prove the use of race, even if it’s one of several factors used when considering an applicant, is necessary and that no other race-neutral process could achieve creating the same diversity. Texas already uses a race-neutral process called the Top Ten Percent rule to get 80% of the freshmen classes at the UT. High school students in the top ten percent of their graduating class are automatically given admission to the university. As many of the schools in the state are segregated, this process has increased the number of minority students admitted. But the UT says it’s not enough to create the critical mass of racially diverse students they want.

I was in the Court the day the Fisher decision came down and Justice Kennedy, speaking for the 7-1 majority (Justice Kagan recused herself in the case), sent the case back to the lower court with a warning to the University – Prove you can’t achieve your goal of diversity without using race or change your policy. When the Court fires a warning shot it sends a clear message that they will alter significant precedent if significant changes are not made. But Texas hasn’t changed anything. Since the decision, race is still one of the criteria used in the UT’s admissions process and the 5th Circuit ruled (twice) that they were satisfied with the school’s practice.

I wrote a piece recently about the en banc decision from the 5th circuit. Edward Blum, director of the Project on Fair Representation, is challenging two other universities in court for their race-based admission processes. According to their new and improved website, the PFR is bringing legal action against Harvard and UNC-Chapel Hill.

It’s hard not to picture the majority at least mildly perturbed and anxious to rehear Fisher. If this case gets four justices to grant certiorari it doesn’t spell the imminent demise of affirmative action practices nationwide – remember, Texas’ Top Ten Percent rule is a unique feature of the state that is already race-neutral – but it doesn’t look good.