UPDATED 7:35 p.m. JUNE 24: The story was updated with changes throughout.
by REEVE HAMILTON
Eight months after hearing oral arguments, amid much anticipation, the U.S. Supreme Court on Monday sent a prospectively landmark affirmative action case involving the University of Texas at Austin back to a lower court.
In Fisher v. the University of Texas at Austin, a white student claimed that UT’s decision to not admit her was unfairly based on race. UT-Austin uses race as one element of its admissions process, part of a holistic review of applicants who don’t automatically qualify under the state’s “top 10 percent” rule.
Although the case is styled Fisher vs. University of Texas, one of the original plaintiffs was Rachel Michalewicz of Buda, who graduated from Hays High School in 2008 and attended UT-San Antonio after failing to be admitted to UT-Austin. She withdrew from the lawsuit in 2011 and is no longer a plaintiff.
The 5th Circuit Court of Appeals had previously upheld UT-Austin’s existing policy, but in a 7-1 ruling, the Supreme Court decided that the lower court did not adequately “hold the University to the demanding burden of strict scrutiny” laid out in a previous Supreme Court ruling on the consideration of race in admissions decisions.
In other words, the 5th Circuit deferred to UT-Austin’s judgment to an excessive degree in it initial ruling. “It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption,” Justice Anthony Kennedy wrote in the majority opinion. Justice Ruth Bader Ginsburg was the lone dissenting vote; Justice Elena Kagan recused herself from the case.
After finding that the manner in which the 5th Circuit court reached its opinion was incorrect, the Supreme Court justices — out of “fairness to the litigants and the court” — opted to send the case back for “a correct analysis,” effectively leaving the specifics of UT-Austin’s case undecided as regards to the country’s current laws, which remain unaltered.
UT-Austin President Bill Powers issued a statement saying the university was “encouraged” by the ruling. He said the university would continue to defend its policies, which it believes are consistent with previous Supreme Court decisions.
“We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court,” Powers said.
A 1996 decision in Hopwood v. Texas forced state universities to search for race-neutral methods of increasing diversity on campus. This prompted Texas lawmakers to adopt the top 10 percent rule, designed to promote diversity by granting automatic admission to students who graduated in the top 10 percent of their high school class. Because of popular demand, a cap on automatic admissions at UT-Austin now effectively limits such admission to the top 7 percent of high school graduates.
Since a landmark 2003 opinion in Grutter v. Bollinger allowing the limited use of race in the admissions process at the University of Michigan Law School, UT System’s flagship institution has included race as what its lawyers call a “factor of a factor of a factor of a factor” in admissions decisions for students who do not qualify automatically.
In her dissent, Ginsburg wrote that she would “not return this case for a second look” because of this flexible consideration of race, which is periodically reviewed to an extent that she believes justifies the lower court’s initial decision.
However, the majority of the Supreme Court felt the 5th Circuit court did not adequately hold UT-Austin to the standards articulated in the Grutter case. This means the university, while it can continue with its current approach for now, will have to mount a stronger defense of its policies as the case is argued further.
“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Kennedy wrote.
University of Texas System Chancellor Francisco Cigarroa issued a statement saying, “We are pleased that the Supreme Court believes there is a compelling governmental interest in assuring diversity at our nation’s universities and encouraged that the Court upheld its ruling in the Grutter case, a landmark decision that gave public universities the ability to use race as one of multiple factors in determining admissions.”
Plaintiff Abigail Fisher, who graduated in the top 12 percent of her high school class, believes her race should not have played any factor when she was denied admission to UT-Austin in 2008. She was handpicked, along with another girl who has since dropped her case, by the D.C.-based Project for Fair Representation to challenge race-based admissions in court.
At a press conference in Washington, D.C., Edward Blum, the head of Project for Fair Representation declared Monday’s ruling a “win” for his side.
Fisher has graduated from Louisiana State University and found a job as a financial analyst in Austin. The specific financial stakes in her case are low: She is seeking the return of her application fee and housing deposit, which comes to a total of $100. But she claims that by being shut out of UT-Austin, she missed the opportunity to tap into its alumni base and make the most of its well-regarded brand when searching for jobs in Texas.
UT-Austin has said that, based on her academic performance in high school, Fisher would not have been admitted whether race was a factor in the decision or not. Whether she suffered the sort of harm that would be sufficient grounds for a lawsuit has also been in question. More broadly, UT-Austin has said that its current admissions policies, which are unaffected by Monday’s ruling, are necessary to help the university create a more diverse student body.
The decision prompted approval from Texas lawmakers on both sides of the aisle, but for different reasons.
“For people who are for affirmative action, it’s a victory,” state Rep. Garnet Coleman, D-Houston, said, “but there’s sort of a stuck-in-limbo feeling. It leaves us with the same question of what’s next for affirmative action?”
Coleman said Texas needs to continue to focus on creating more top-tier universities, so that students are not left feeling like UT-Austin is one of their only shots at a high quality higher education. He also said he expects universities, and particularly graduate schools, around the state will review tweak their admissions policies to ensure they hold up under the “strict scrutiny” cited by the court.
State Sen. Rodney Ellis, D-Houston, declared the ruling a “victory” of UT and the state because it “ensures that the well-established use of affirmative action to ensure diversity on campus can be maintained.” He also noted that the decision allows the Legislature to take a “wait and see” approach, rather than act ont he matter immediately.
Meanwhile, Republican U.S. Sen. Ted Cruz, issued a statement, saying, “Discriminating because of race is wrong, and this was a victory for our color-blind Constitution.”
The ruling is a somewhat anticlimactic end to a long wait. Edmund Gordon, the chairman of UT-Austin’s African and African Diaspora Studies department, who was nervous that the court might do away with affirmative action, described hearing the ruling as “kind of slightly a roller coaster.”
“First of all, what does this mean? Second, it hasn’t done away with affirmative action, but it certainly didn’t uphold it.”
The Supreme Court heard oral arguments in the case in October 2012. Much of the discussion in the courtroom centered on how to define “critical mass” when it comes to diversity.
At the time, UT-Austin President Bill Powers claimed the university had not yet achieved critical mass, which he defined as a situation where “a sufficient number of classrooms for a sufficient number of students as they matriculate through UT, and in the campus generally, have the kind of educational environment that is going to prepare them for working in an increasingly global and diverse world.”
Regardless of the ultimate outcome of the Fisher case, the state of Texas is poised for a debate on the top 10 rercent rule in the next regular legislative session. In the recently concluded session, lawmakers passed a bill pushing UT-Austin’s ability to cap its automatic admissions at 75 percent of the incoming Class of 2017; it was originally slated to end in the 2015 academic year.
The law included a provision nullifying the cap if a court ruled against allowing race as a factor in nonautomatic admissions decisions, but not before the Legislature has a chance to reconvene and debate the situation.
“It kept in place the current method until 2017 to let us review it, of course, but then to allow the University of Texas to come up with something else to see if they could increase minority enrollment,” Senate Higher Education Chairman Kel Seliger, R-Amarillo, said of the bill. “Nobody seems to disagree that that’s a worthwhile goal, and that’s good.”
REEVE HAMILTON reports for The Texas Tribune where this story was originally published. It is reprinted here through a news partnership between the Tribune and the San Marcos Mercury.
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