How Fisher v. University of Texas Could Break the College Admissions Process

Supreme Court precedent is a powerful thing.

In race-conscious policy cases such as Fisher v. University of Texas, precedent can radically redefine how we look at race in regards to education. Fisher will be the first such case before the high court since Grutter v. Bollinger, a 2003 decision in which the justices upheld race-conscious policies by 5-4.

The University of Texas won its case before an appeal court in New Orleans last year, substantiating their admissions process as fitting within the standards of the Court's decision in Grutter v. Bollinger. But as Justice Elena Kagan has recused herself from Fisher, there's one less voice on the Court likely to support the university's arguments.

In order to uphold the lower court’s ruling, the Court would need to have a decision of 4-4 (a tie) or 5-3 (or higher) in favor of the University of Texas must be concluded. If SCOTUS rules in favor Fisher (5-3 or higher), the result is a reversal of Grutter v. Bollinger, overturning all college affirmative action admission policies. If Fisher wins her case, then race can longer be a factor when admitting students to college and effectively end universities’ diversification practices.

When Abigail Fisher applied to the University of Texas at Austin in 2008, she was not granted admission under the university’s primary admissions program: the Top Ten Percent plan, which admits the top 10 percent of all high school graduates regardless of race, sex, etc., because she was not qualified. The Top Ten Percent plan accounted for 81 percent of the incoming freshmen class; Fisher was not admitted as part of the remaining 19 percent. She filed a complaint against the university policies that consider race in admissions.

The admissions process has seen an increase in diversification efforts, but talents and leadership abilities are noted along with race as having major impressions on a student’s application.

The first “affirmative action” case is typically noted as Brown v. Board of Education, in which the Court overturned the “separate, but equal” claim in order to guarantee a truly equal education for young African-American students. Brown v. Board set the precedent that the Supreme Court had the power to address race as a factor in education and had obligatory duties to apply it through the 14th Amendment’s equal protection clause.

The first case with a university setting was in 1977 with University of California Regents v. Bakke, which has set the foundation for debates on whether race should be included in the college admissions process. It's worth noting every case concerning race-conscious polices in higher education have been filed by white students alleging their Equal Protection rights were violated.

The University of California–Davis medical school had a racial quota of 16 minority students in each admitted class of 100 to combat the long unfair minority exclusions. Allan Bakke, a Caucasian male, was twice denied admission to the school despite having higher test scores and GPA than any of the admitted minority students.

In a split decision, the Supreme Court ruled that a racial quota system was in violation of the Civil Rights Act of 1964, but justices also agreed that using race as factor for the admissions process in higher education was permissible.

Race-conscious admission policies don't come up again in this setting until 2003 in Grutter v. Bollinger.

Barbara Grutter, a Caucasian female, was denied by the University of Michigan Law School despite having a 3.8 GPA and a 161 LSAT score. She filed a complaint against the university because of its acknowledgement that race was a factor in accepting students, serving a “compelling interest in achieving diversity among its student body.” The Supreme Court, in another 5-4 decision, ruled that a narrow policy in which race was a factor is not in violation of 14th Amendment’s Equal Protection clause.

The last precedent is Gratz v. Bollinger, which complicates the issue.

Jennifer Gratz, like Grutter, filed a case against the University of Michigan after being denied admission to their undergraduate school. Again, the school noted its interest in fostering diversity of underrepresented minorities on campus. This was emphasized by the school's use of a "point system," in which minority status weighed at heavier point values.

Decided at the same time as Grutter v. Bollinger, the Gratz decision determined that race could not be measured on a point system assigned to each applicant—meaning that being a racial minority would count toward a total that also measured test scores, leadership abilities, and other factors. Gratz is a limitation on Grutter in the fact that colleges and universities have to find a measurable—but not a quantitative—way to account for race in their admissions process.

***

The Fisher v. University of Texas case will be heard by eight of the Court's justices on Wednesday. Justice Kagan has recused herself because of her previous role as Solicitor General while the case was with a lower court. Kagan’s vote could have proven crucial, but let’s look at where the others might fall.

Three justices have personal experiences with race-conscious policies.

One's experience  postive: Justice Sonya Sotomayor and two justices negative: Justices Samuel Alito and Clarence Thomas.

Justice Clarence Thomas: Likely to side with Fisher

Justice Clarence Thomas, for instance, faced skepticism after his graduation from Yale Law School, as some employers thought his degree was due to affirmative action policies rather than his own abilities. Thomas has called affirmative action a “cruel farce” and a “badge of dishonor.”

Thomas dissented in Grutter, which upheld race-conscious policies, and voted in the majority for Gratz, which limited such practices. Thomas’ view has been that such policies are "reverse racism," and he has strongly opposed their existence in general.

Justice Samuel Alito: Likely to side with Fisher

Alito, despite coming from a working class family, was involved in a group called Concerned Alumni of Princeton that worried about the increased number of women and minorities who were being admitted to Princeton. This already makes a strong case for where his vote might fall, but Alito has only been on the Court since 2006, after both Grutter and Gratz were decided; he has not been on the Court to hear a case on such policies in higher education.

But there is one case that lends some insight: a public school affirmative action case. Parents Involved in Community Schools v. Seattle School District No. 1, which addressed the issue of school districts assigning children a public school in order to achieve racial integration. The Court—Alito included—decided that the state could not assign schools in this way.

However, the case dealt with racial integration and desegregation rather than a justification for greater diversity (the common defense in higher education admissions cases) and Alito has not always voted against discrimination cases (see the age-discrimination case Gomez-Perez v. Potter).

Justice Sonia Sotomayor: Likely to side with the University

Sotomayor has personally benefitting from race-conscious policies. She admits that she is a “perfect affirmative action baby,” acknowledging the disparity in her test scores in comparison to other accepted Princeton undergraduate and Yale law students.

Because the Fisher case could eliminate such policies in higher education, it's likely that Sotomayor will pull weight from her personal life in her decision and vote to give others equal opportunities.

Justices Ruth Baden Ginsburg and Stephen Breyer: Likely to side with the University

Both Ginsburg and Breyer were around for Grutter and Gratz. Ginsberg voted in favor of race-conscious policies in both cases. Breyer voted in favor of Grutter, but not in Gratz because of the University of Michigan’s point system’s similarities to the quota system overturned in Bakke.

Despite this, the Grutter decision is a greater indicator because of its support for race-conscious policies generally. It's unlikely either will vote to eliminate affirmative action policies.

Justice Anthony Kennedy: Likely to side with Fisher

Kennedy has voted against every pro-affirmative action case during his tenure. But because of his de facto “swing vote” position on the Court, he may prove to be less predictable. It's doubtful that he will rule against his own precedent, though.

Justice Antonin Scalia: Likely to side with Fisher

Scalia, like Kennedy, has voted against every pro-affirmative action case, and in 2003 he confirmed his stances against affirmative action.

The same year as Grutter and Gratz, the Court declined to review a Denver case about a program to help minority-owned and female-owned construction companies. What's interesting is that Scalia took the unusual step to dissent the Court’s denial. Scalia accused his colleges of undermining the “colorblindness” principle found in the 14th Amendment’s Equal Protection Clause. Many argued that Scalia's dissent was because of his belief that such practices were "reverse discrimination," giving minorities and women an advantage over others.

Chief Justice John Roberts: Likely to side with Fisher

Roberts was not around during Grutter or Gratz, but he wrote the majority decision in Parents v. Seattle, which indicates he could side with Fisher. He noted in the decision, “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ”

It's worth noting, however, that of the “conservative wing,” Roberts has been the least vocal on race-conscious policies. Roberts could easily decide that such efforts are no longer necessary and should not be protected by the 14th Amendment—or that Fisher herself is responsible for not being academically eligible for the Top Ten Percent program.

What's Next?

Based on precedent, it's not difficult to imagine a 5-3 decision in favor of Fisher.

Such a move by the Court could prove detrimental to low-income college applicants across the country. For one, it could mean they might struggle to earn admission to some colleges simply because of an educational disadvantage earlier in life. It could also impact the diversity on campuses, limit the opportunities for minorities, and limit educational progress. Such effects would likely be more noticeable at the top 10 to 15 percent of colleges and universities.

The Court's decision could lead to an elimination of programs that help minority students pursue higher education—from outreach and targeted recruiting programs to scouting for college athletes. While academics should arguably be the focus over sports, if state schools renowned for their sports programs can’t recuit talented students because they had an academic disadvantage, their endowments and alumni donations could ultimately decline and impact the available funds for athletics.

Because race-conscious policies are designed to mitigate disadvantages associated with longstanding, historical discrimination, Deidre Bowen of Seattle University noted that minority students experience more hostility at institutions where such admission practices are banned. Students face less hostility at schools that consider race.

Others say that overturning affirmative action will actually help the education system by eliminating stigmatized environments, negative stereotypes, and self-confidence issues. Now there are some generalized, stereotypical points in the article, but it does raise a point about disparity in academic performance based on racial preferences. The justification in the Atlantic article is that certain systems extend “… the equivalent of hundreds of SAT points” to African-Americans and Native Americans in contemporary racial preferences.

In Fisher, there is some backup to this as well. The typical African-American student was in the 52nd percentile of the SAT while the average Caucasian student was in the 89th percentile. That's a significant difference and could sway the case in favor of Fisher—but it may also be an important caveat that may prevent a full overhaul of these policies and instead just create another limitation.

Such a difference in admission by SAT scores could mean that the Supreme Court determines there's a need for a national/state/university-level system to address the disparity between admission and more clearly defines what is allowed with race-conscious policies. This could simply mean making it unconstitutional to have a 37-point differential in SAT admissions, using different levels of SAT scores for admission, or even a move away from SAT scores as being a huge factor in applications too.

Another possibility with a pro-Fisher ruling is that the current admission plan, the Top Ten Percent, already accounts for race and thus race is not needed in determining the rest of the admission slots. In any case, there's enough uncertainty now to make these oral arguments extremely interesting.

Jeff Raines is a journalism intern with Campus Progress. You can follow him on Twitter @Jeff_Raines.

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