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Adding to the 25 year clock?

How the Supreme Court’s most recent decision concerning affirmative action in college admissions could have just re-set the clock on racial relations on college campuses across the country.

Photo by Bustle.com (Courtesy of Google)

In 2003, Justice Sandra Day O’Connor expressed her hope that in 25 years, racial preferences would no longer be necessary in college admissions.  In what is being hailed as a major victory for affirmative action, the Supreme Court of the United States’ decision on June 23, 2016 regarding Fisher v. University of Texas may have pushed that date back a bit.

Much has been said about the case’s progenitor and so-called “Becky with the bad grades,” Abigail Fisher, who pursued her claim against the University of Texas at Austin’s admissions policies all the way to the Supreme Court.  Not enough has been said, however, about the substantive impact of the Court’s opinion in Fisher v. University of Texas.  The Court upheld the University of Texas’ (UT) use of race as an admissions factor.  The majority opinion largely echoes 2004 Supreme Court decisions Grutter v. Bollinger and Gratz v. Bollinger and solidifies the foundation upon which race is used as a factor in college admissions around the United States.

Fisher challenged UT’s admissions process under the Fourteenth Amendment’s “Equal Protection Clause,” claiming that by using race as a factor in admissions, UT unconstitutionally burdened her and other Caucasian applicants. 

Texas employs a unique admissions process, adopted in its current form after Gratz v. Bollinger and Grutter v. Bollinger struck down a race-based admissions quota at the University of Michigan and accepted the general use of race as a factor in admissions decisions, respectively.  The Texas admissions process begins with the “ten percent plan,” which admits the top ten percent of students at each Texas high school to the public Texas university of their choice, assuming of course they choose a public Texas university.  These students account for roughly 75 percent of admissions.  The other 25 percent are selected through a “personal achievement index” which reviews applicant essays, extracurricular activities, community service, and also factors applicant race into the decision-making process.

Abigail Fisher attempted to gain admission to UT in 2008.  She did not fall into the top ten percent of her high school class and therefore failed to gain an automatic bid.  Instead, Fisher submitted an application to UT, but was denied admission before the Fall semester.  Fisher challenged UT’s admissions process under the Fourteenth Amendment’s “Equal Protection Clause,” claiming that by using race as a factor in admissions, UT unconstitutionally burdened her and other Caucasian applicants.  The case originally came before the Court in 2013, but it was remanded primarily because the United States Court of Appeals for the Fifth Circuit used the wrong standard to consider the case.  The lower courts originally applied a “good faith” standard to UT, but the Supreme Court determined UT should have to defend their admission plan under the more difficult “strict scrutiny” standard.

Under strict scrutiny, UT had to show a compelling government interest for using race as a factor in their admissions process, and also show that the use of race is narrowly tailored, i.e. no other non-race based admissions process could achieve the same results and be implemented with “tolerable administrative expense.”  Writing for the majority, Justice Anthony Kennedy explored both these requirements at length.

While Justice Kennedy relied on the pre-proposal study done by UT in 2004 as evidence of a need for race as a factor in admissions, Justice Alito pointed out that one of the Court’s reasons for remanding Fisher v. University of Texas the first time was due to a lack of an identified compelling government interest.  

Ms. Fisher claimed the university failed to articulate a compelling government interest, but Justice Kennedy disagreed.  Justice Kennedy focused on promoting diversity as the compelling government interest behind UT’s race-based admission factor.  He relied on UT’s original 2004 proposal in considering race in the admissions process, and used particularly strong language regarding the need for the “[promotion of] cross-racial understanding” and the growing need in the workplace for experience handling diversity.  Justice Kennedy also referred to a study conducted in 2003 which essentially showed that race-neutral admissions processes had not been successful in promoting diversity to the extent desired by UT.  Together, these were used by the majority as a clear articulation of a compelling government interest.

Justice Samuel Alito, writing in dissent, had a very different point of view.  He commented, correctly, that UT could not claim diversity as their compelling government interest without any findings of need for a race-conscious admissions process.  While Justice Kennedy relied on the pre-proposal study done by UT in 2004 as evidence of a need for race as a factor in admissions, Justice Alito pointed out that one of the Court’s reasons for remanding Fisher v. University of Texas the first time was due to a lack of an identified compelling government interest.   Justice Alito questioned the Court’s about face, wondering why, without any new evidence UT’s “plea for deference that [the Court] emphatically rejected in our prior decision . . . [t]oday . . . the Court inexplicably grants.”  The split between Justices Alito and Kennedy seems to lie on how much deference the Court should give UT, with Justice Alito requiring very little deference and Justice Kennedy willing to defer in large part to why UT says they use race as an admissions factor.

Justice Kennedy focused on demographic evidence of the success that race-conscious admissions had at UT in his opinion, looking to upward trends in acceptance of African-Americans and Hispanics. 

Ms. Fisher’s second point of attack was whether using race as a factor in the admissions process was narrowly tailored enough to pass strict scrutiny.  First, Fisher claimed that UT had already achieved a “critical mass” of diversity by accepting the top ten percent of every high school in Texas.  The term critical mass comes from the Grutter v. Bollinger decision, and refers to the point at which a university’s diversity goals have been met.  If UT achieved a critical mass using the top ten percent plan, there would have been no need to use race as a factor in the second tier of admissions.  Furthermore, Fisher argued that using race had such a minor impact on the number of minority students admitted to UT that it was an unnecessary factor in the admissions process regardless of whether UT had reached a critical mass.

Justice Kennedy focused on demographic evidence of the success that race-conscious admissions had at UT in his opinion, looking to upward trends in acceptance of African-Americans and Hispanics.  However, Justice Kennedy agrees that these upward trends were relatively minor.  The reason Ms. Fisher’s argument is not persuasive, he writes, is because the lack of a role race played in a majority of admissions decisions is the “hallmark of narrow tailoring,” and does not lend itself to unconstitutionality.  Therefore, because Justice Kennedy found that UT’s use of racial factors in their admissions process serves a compelling government interest and is narrowly tailored, he approved UT’s admissions procedure.

“The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” 

The interesting overarching argument made by both Conservative dissenters in this case, Justice Clarence Thomas and Justice Alito, is that using race as a factor in university admissions should be unconstitutional on its face.  Justice Thomas puts it most eloquently by quoting from his own concurrence to Fisher I, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”  Both Justices seem to rely on the theory that true equality is color-blind, treating everyone equal regardless of race.

However, Justice Kennedy, the majority, and UT are all clearly on the side of this issue that says true equality must be developed through preferential treatment for minority students.  Perhaps the truth can be discovered somewhere in between, but for now, the Supreme Court has offered its resounding support for the latter theory.  At any rate, Justice O’Connor’s famous 25 year window before racial preferences can be eliminated might have just been reset.

Jonathan Eure, Staff Writer
About Jonathan Eure, Staff Writer (11 Articles)
Jonathan Eure is a third-year law student and serves as a senior staff writer for the Campbell Law Observer. He lived in Morganton, in the foothills of North Carolina, before moving to Raleigh for law school. He earned BA’s in Political Science and History from the University of North Carolina at Chapel Hill, graduating in 2014. The summer after his first year of law school, Jonathan worked as a legislative research intern with Representative Rob Bryan in the North Carolina General Assembly. Jonathan now interns with the Honorable Paul Newby at the North Carolina Supreme Court. Jonathan is the Secretary for the Campbell Public Interest Law Student Association (CPILSA).