What happens after race-based admissions policies lose in the Supreme Court?

By Cara L. Gallagher, weekend contributor

This year, Groundhog Day will be celebrated on Wednesday, December 9th. That’s the day Fisher v. The University of Texas at Austin – a case that tests the use of race in admissions processes – returns to the U.S. Supreme Court. The case heads back to the SCOTUS Wednesday only two years since Fisher I. The University received a warning shot last time when a 7-1 majority remanded the case back to the lower court ordering the UT prove the only way to achieve a “critical mass” of diverse students was to do so using race as a factor in their admissions process.

That was in June of 2013. Since then UT hasn’t changed its admissions processes and the 5th Circuit Court of Appeals ruled again last summer that the school’s use of race passed constitutional muster.

So what does this mean? It means the SCOTUS was being conciliatory last time and likely won’t be so understanding this time.

UT is going to lose this case, sending affirmative-action policies on college campuses across America into a tailspin. But not a death spiral.

In 2008, Abigail Fisher challenged the use of race in the UT-Austin’s holistic admissions process, a school she’d aspired to attend because her parents were alums. The surefire way to get into the UT – a school 91% of Texans attend – is to be smart: top ten percent of your class smart. That’s because the Texas Legislature passed a law in 1997 that guaranteed admission to every Texas public school student in the top ten percent of his/her class. Roughly 70-80% of students at the UT get in through the Top Ten Percent Plan (TTPP). The remaining seats are awarded through a holistic process. Fisher was smart (top 12% of her class), but not smart enough, and she was thrown into the holistic process where her application was considered based on six categories. The categories include objective criteria like grades and test scores, as well as subjective criteria like personal essays, extra curricula, leadership opportunities, and “special circumstances.” Race is one factor among six in the special circumstances category.

Fisher asserted she was denied admission because, unlike other applicants of color, she couldn’t use race as a meaningful factor to her advantage so she sued the claiming UT violated the equal protection clause of her 14th Amendment rights.

Previous caselaw such as Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) support universities’ consideration of race in admissions processes, but such processes must withstand the test of “strict scrutiny.” To do this they have to prove the use of race serves a compelling need, demonstrate to a federal court their race-based admissions processes are narrowly tailored, and that there is no other race-neutral way to achieve the same outcome without such a process.

This is where the case falls apart for UT. The Top Ten Percent Plan achieves diversity without using race. The question is how much diversity is enough, or enough to achieve a “critical mass”?

The reality of Texas’s public high schools is that many are majority-minority schools, especially in urban areas. “While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40% of black students attend a school with 90%–100% minority enrollment.”

Segregated neighborhoods pervasive in Texas keep Hispanic schools Hispanic, black schools black, and white schools white. Certainly, majority-minority schools are not unique to Texas, they’re everywhere in America. And while we may be inclined to praise the Texas legislature for enacting seemingly progressive policies that attempt to remedy the problem, remember that this legislation only works if the public schools in the state stay segregated. To celebrate Texas’ TTPP would be like rooting for Linda Brown in Brown v. Board of Ed. to have stayed at her majority-minority school so that she too could maybe have a shot at getting into college.

So Fisher will win this case, for starters, because Justice Kennedy’s majority opinion in Fisher I was clear to the lower court – unless something changes, as it stands, the UT’s use of race doesn’t satisfy the narrow tailoring requirement of strict scrutiny. “Strict scrutiny is a searching examination, and the government bears the burden to prove ’that the reasons for any [racial] classifications [are] clearly identified and unquestionably legitimate.’” While the UT, like many universities, has a legitimate desire “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” it changed nothing to its admissions policies since the majority’s warning.

Further challenging the legitimacy of the use of race is the fact that students of color are gaining admission through the TTPP. Kennedy wrote narrow tailoring “requires a court verify that it is “necessary” for the university to use race to achieve the educational benefits of diversity. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Writing for the majority in the 5th Circuit, Judge Higginbotham said “We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It seems almost impossible to imagine the majority supporting the lower court’s inaction last summer in light of incremental gains in minority students via the TTPP.

In the first Fisher, Justice Kennedy criticized the lower court saying it couldn’t simply give UT the benefit of the doubt and had to closely examine how the process works in practice. Though deference has been shown to universities, UT must demonstrate “no workable race-neutral alternatives would produce the educational benefits of diversity.” Strict scrutiny can’t be arbitrary or “strict in theory, but fatal in fact.”

Finally, only 8 of the 9 Justices sat for Fisher I and will for Fisher II. Justice Elena Kagan recused herself both times because she worked on the case when she was in the Solicitor General’s office, before she joined the bench. Mathematically this couldn’t work better for Fisher given the four historically conservative justices have been vocal about their desire to kill all affirmative-action policies, with Kennedy most definitely siding with them again.

So what happens to affirmative action programs in public colleges and universities after UT loses? Remember that the trajectory of race-based college admissions cases since Bakke has mostly resulted in the same response from the Supreme Court: You’re doing it wrong. Does that mean if Fisher wins the decision will send all affirmative action admissions programs into a proverbial “death spin”? Not at all, but it will make using the word “race” in admissions nearly impossible.

So what then will be the new ways in which colleges can admit and attract minority students without explicitly using race? I have a few ideas that are at best in their crazy nascent stage, at worst constitutionally unsound but perhaps thought-provoking.

Subvert the currencies of admissions.
Get rid of grades, test scores, and legacy status. The first two are arbitrary, subjective, distract students from process and enrichment, privilege the privileged or those who can afford tutors, and benefit white students more than students of color. The last one is where the real debate about fairness in college admissions should be happening.

Similarly, pull the focus away from the currencies and put it into a comprehensive entrance process, similar to the application process at Bard College:

“The Bard Entrance Examination offers a new way to apply to Bard that bypasses existing standardized tests and admission processes, leveling the playing field among applicants worldwide. The examination enables motivated students to gain admission through an essay test, engaging applicants in a process that more closely mirrors actual college coursework. The examination is composed of essay questions in three categories: Social Science, History, and Philosophy; Arts and Literature; and Science and Mathematics.”

Have teams composed of professors, deans, and current and former college students read three essays. If two teams mark it above an 80%, or whatever the desired score is, the applicant gets accepted. The grade can be curved based on per pupil spending or zip code data, or any data that would reveal more about the quality of the public high school from which the applicant came.

2. Create an institutional policy similar to TTPP.

Admit a percentage of students based on per pupil spending data or zip codes of public schools. Per pupil spending on school districts in black or Hispanic neighborhoods tends to be significantly lower than white districts. Establish a metric in which zip codes historically inhabited by minority applicants are weighted higher than those in wealthier districts.

This still seems like a lot of end runs schools will need to take to achieve the seemingly established, legal right they have to use race as a factor in admissions. But how do you support diversity in race-blind ways? It’s an almost laughable oxymoron. Justice Ginsburg, who wrote the lone dissent in Fisher I, said in a footnote “The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: ‘If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.’ Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

Oral arguments are scheduled for Wednesday, December 9th, 2015. A decision in the case is expected sometime next spring or summer.

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