by Gabriel “Jack” Chin, Professor of Law at the University of California, Davis School of Law. He was represented in Fisher as amicus curiae by the Asian American Legal Defense and Education Fund, and is co-author of Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, a policy analysis of affirmative action in education.
In Fisher v. University of Texas at Austin, No. 11-345 (June 24, 2013), the Court issued a non-decision decision, reversing the Fifth Circuit’s judgment upholding a race-conscious admissions policy but without holding that affirmative action is generally unconstitutional. Justice Kennedy writing for seven justices held that reviewing courts were required to hold the details and implementation of an affirmative action program to the rigors of strict scrutiny, and remanded for that inquiry. Only Justice Ginsburg dissented, claiming the program was valid as it was. But the real question thought to be at issue in Fisher -- the validity of the diversity rationale for affirmative action approved by the Supreme Court in Bakke and Grutter -- was not reached by the majority and remains open. (In concurrences, however, Justices Thomas and Scalia adhered to their view that Bakke and Grutter were wrongly decided).
The University of Texas used two programs to increase diversity in undergraduate admissions. One program, “Top Ten,” imposed by the Texas legislature, automatically admitted most high school graduates in the top ten percent of their classes at Texas high schools. Although formally race-neutral, Top Ten substantially increased diversity. The Court reported that under it, 4.5 percent of the entering class was African-American, and 16.9 percent Hispanic. Before 1996, when there was no Top Ten but UT used a race-conscious affirmative action program struck down in an earlier case, only 4.1 percent of the class was African-American, and 14.5 percent Hispanic. That is, a race-neutral program actually seemed to result in more diversity more than a race-conscious one.
But in 2004, UT concluded that Top Ten alone had failed to generate a critical mass of minority students, particularly in small classes. Accordingly, UT added race to the admissions process by making it a “plus” factor of unspecified weight as part of a holistic review of applications. The Fifth Circuit’s decision upholding this program was at issue in Fisher.