Fisher v. University of Texas at Austin

  • August 26, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    The March on Washington for Jobs and Freedom represented the high point of the decades-long civil rights movement against Jim Crow apartheid. The March brought heightened international attention to African Americans’ demands for social, political, and economic justice.  And the March offered a snapshot of the battle to awaken the moral imagination of the country. Indeed, the progress achieved in the 1960s battle for civil, political, and economic rights could not have been made without first winning the battle for the moral imagination of the United States. 

    The movement made apparent the injustices of Jim Crow. The movement called white America’s attention to the terrorism of lynching and bombings. The movement forced Americans to consider the effects of segregated facilities. The movement demanded equal participation for African Americans in the political process. The “I Have A Dream” speech spoke for many in the movement by setting out specifically the moral question of civil rights for African Americans to the country.

    Dr. King sought not just to evoke the question, but also to show the necessity of answering the question immediately. He said that “[w]e . . . come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”  Yet, the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done. 

    Fifty years ago, because of the public shaming of nonviolent protest, the majority society of 1963 could no longer ignore the tyranny of American apartheid. As a result, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  We can rightfully rejoice in the fact that America today cannot be called an “apartheid” country. But the majority society of 2013 seems to have forsaken the Civil Rights Movement’s call to moral imagination. Instead, many in society seem to have fallen victim to a new kind of gradualism.

  • June 28, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over.  Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards.  And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.   

    Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.

  • June 24, 2013
    Guest Post

    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.

  • June 24, 2013
    Guest Post

    by Vinay Harpalani, Visiting Assistant Professor of Law at IIT Chicago-Kent College of Law. Some of Harpalani’s publications are available here.

    More than nine months after it heard oral arguments, the U.S. Supreme Court finally rendered its opinion in Fisher v. University of Texas. In a surprising 7-1 ruling, with only Justice Ginsburg dissenting, the Court vacated the Fifth Circuit ruling and remanded the case, but it did not declare the University’s admissions policy to be unconstitutional. Rather, it instructed the lower courts to apply strict scrutiny with regard to the key question: whether the University of Texas at Austin needs to use a race-conscious admissions policy, in addition to the Top Ten Percent Law, to achieve the educational benefits of diversity. This is exactly what one of my recent law review articles on the case had recommended, albeit for different reasons.

    Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one).  Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority.  The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous. 

    In Fisher, the Court states:

    [t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu­cational benefits of diversity … [and] … [i]f “‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense[]’” … then the university may not consider race.

  • June 24, 2013

    by Jeremy Leaming

    In an opinion not touching precedent the U.S. Supreme Court avoided invalidating on constitutional grounds the use of race-conscious admissions policies in higher education.

    In Fisher v. University of Texas at Austin, the high court led by Justice Anthony Kennedy reaffirmed precedent that race-conscious admissions policies are not inherently unconstitutional. Instead, Kennedy found that the lower court, the U.S. Court of Appeals for the Fifth Circuit, failed to apply heightened judicial review to the university’s admissions policy, which takes race into account. The university’s admissions policy was challenged by a white woman, Abigail Fisher, after she was denied admissions. Fisher lodged the lawsuit against university officials arguing that its race-conscious policy violated the Constitution’s Equal Protection Clause.

    Kennedy (pictured) was joined by Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Samuel Alito and Sonia Sotomayor. Justice Elena Kagan recused herself in the case and Justice Ruth Bader Ginsburg lodged a dissent.

    In a brief majority opinion, Kennedy reaffirmed the high court’s precedent on the use of race in higher education admissions policies. Admissions policies that consider race must be reviewed “under the Fourteenth Amendment” and subject to “strict scrutiny, for when government decisions ‘touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.’” Citing the same opinion, in Regents of the University of California v. Bakke, Kennedy noted that the high court had “identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body.”

    Nevertheless, the majority punted the case back to the Fifth Circuit, finding that it failed to properly apply a heightened judicial review. Instead the Fifth Circuit, Kennedy wrote, did not subject the university’s admissions policy to rigorous review as called for in the 2003 high court opinion, Grutter v. Bollinger, which upheld the University of Michigan law school’s race-conscious admissions policy.

    “Strict scrutiny does not permit a court of appeals to accept a school’s assertion that its admissions process uses race in a permissible way without giving close analysis to the evidence of how the process works in practice,” Kennedy wrote.