Fisher v. University of Texas at Austin

  • June 27, 2016
    Guest Post

    by Joseph Fishkin, Professor, University of Texas at Austin School of Law and Co-Faculty Advisor to the ACS Student Chapter and Member of the ACS Board of Academic Advisors

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.  

    **This post originally appeared at Balkinization

    Fisher v. Texas II, decided last week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades.  Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions.  They have perennially come up one vote short.  A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments.  Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs.  In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach.  (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)

    There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities.  This time the constraint would not be about holistic review.  Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative.  Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I).  But this week Justice Kennedy wrote a different ending to the story.  Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected.  He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria.  He opened up a space for pluralism.

    Two different kinds of pluralism.  The first is about the approaches different institutions use in admitting their students.  The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model.  Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values.  “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”  In other words, we need a diversity of approaches to diversity.

  • June 24, 2016
    Guest Post

    by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law, Savannah Law School

    Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions.  And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost.  Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court.  The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand.  While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.

    Justice Kennedy’s majority opinion affirming UT’s use of race was surprising.  He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan.  I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions.  But Justice Kennedy’s majority opinion did not do that.  It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions. 

    In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies.  The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity.  However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.

  • December 18, 2015
    Guest Post

    by Tanya WashingtonProfessor of Law, Georgia State University College of Law. Follow the professor on Twitter @Profwashington8


    But, more important than how his comments are perceived is how they frame the debate about affirmative action and how they will inform the Supreme Court’s decision in Fisher v. University of Texas at Austin

    The issues before the Court center on whether the means of obtaining the racial diversity that serves educational prerogatives is narrowly tailored and therefore constitutional, and not whether the end to be achieved (educational diversity) is a compelling and constitutional goal. Though the constitutionality of educational diversity was settled as a matter of law in Grutter v. Bollinger in 2003, the comments of several justices, including Justice Scalia, during oral arguments in Fisher suggest that its constitutional future is far from certain. 

    In oral arguments before the Court on December 9, 2015, Justice Scalia made the following controversial statements about the legitimacy of educational diversity: 

    There are . . . those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, … a  slower-track school where they do well. . . . One of the briefs pointed out that most of the Black scientists in this country don't come from schools like the University of Texas. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too fast for them. . . . I'm just not impressed by the fact that the University of Texas may have fewer [Blacks].  Maybe it ought to have fewer. And maybe some you know, when you take more, the number of Blacks, really competent Blacks admitted to lesser schools, turns out to be less. 

    Justice Scalia is not the first justice to express these views.  In his dissent in Grutter v. Bollinger Justice Thomas observed, “[O]vermatched students . . . . find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.” These views tap into the perception of affirmative action as a way of admitting “unqualified” students of color into colleges and universities where they cannot compete.  

  • December 18, 2015
    Guest Post

    by David G. Hinojosa, National Director of Policy- Intercultural Development Research Association, and counsel for various amici in Fisher v. University of Texas at Austin since 2008

    Last week during oral argument in Fisher v. University of Texas at Austin (UT), the Supreme Court found itself at ground zero between the pursuit of racial diversity and opportunity in higher education for all students and the desire of the “old guard” to maintain systemic privileges that tend to favor white students. Justices Sonia Sotomayor and Stephen Breyer touted the benefits of diversity and how UT’s dual admissions program (holistic and Top Ten Percent) satisfied the Supreme Court’s tenets of lawful affirmative action programs. Meanwhile, Chief Justice John Roberts asked how a student’s race could matter in an astrophysics class, and Justice Antonin Scalia suggested that selective universities like UT perhaps do a disservice to Black students by admitting them. Plaintiff Abigail Fisher did not raise these issues during oral argument or in her briefs, and they were not part of the evidentiary record, leaving many observers to speculate where these justices may be headed.

    This is especially concerning because for nearly 40 years, the Court has grounded its affirmative action admission rulings by recognizing the important educational benefits that flow from diversity, including racial diversity, in higher education (and K-12 schooling in Seattle v. PICS, J. Kennedy concurring) and by deferring to the educational expertise of universities in determining their educational mission and how racial diversity fits in the mission. The record in Fisher shows how UT’s diversity plan does not run afoul of the Constitution by pursuing diversity solely for the sake of racial balancing. Instead, UT’s plan reflects “a reasoned, principled explanation for the academic decision” that adds race as one of several factors considered for non-Top Ten Percent applicants. And both UT’s brief, as well as several amicus briefs including those submitted by social scientists, psychologists and educational researchers, reflect substantial research showing the benefits of diversity and the link between diversity and greater opportunities for all students.

    So what exactly are these “benefits” and who benefits? The research cited in the aforementioned briefs demonstrates that the benefits of diversity extend to learning opportunities for all students, not just those minority students admitted. For example, research examining the impact of diverse learning environments show that both majority and minority students’ cognitive skills improve. This should not be surprising as exposure to different opinions on a subject by students of different backgrounds could logically impact critical thinking and improve problem solving. A Michigan study of 500 students found the diverse classroom learning environment resulted in livelier and more engaging discussions. Diversity in higher education also promotes civic engagement, builds leadership, and prepares students for life after college. Several briefs filed by the business sector, including Fortune 100 companies, explained how racial diversity in university settings is “a business and economic imperative” in the growing, diverse global market.

  • December 10, 2015

    By Jim Thompson

    Joseph Blocher, co-faculty advisor to the Duke Law ACS Student Chapter, writes in The New York Times that implementing gun laws at the local level of government may provide an effective way forward in the broader debate about gun rights and regulation.

    At The Atlantic, Gillian Thomas criticizes a loophole in Title VII of the 1964 Civil Rights Act that allows employers to restrict a job to men only or women only if they can reasonably prove that only one sex can effectively carry the duties of that profession.

    At Salon, Amanda Barcotte blasts Abigail Fisher for her race-baiting Supreme Court case that seeks to bolster subpar white university applicants and avenge a personal grievance from almost a decade ago.

    At the Global Legal Post, ACS Board of Directors member Reuben Guttman reviews Spotlight, a film about the use of private forums and sealed proceedings to resolve matters of potential public importance, and comments on the growing prevalence of mandatory arbitration clauses in the American legal system.

    Public Justice’s Arthur Bryant speaks with CNBC about a longtime defect in a popular firearm. Public Justice’s legal action against the Remington Arms Company has forced the unsealing of voluminous documents that reveal the company has known for years that a defect in its model 700 rifle causes it to fire without the trigger being pulled.