Although there is no date for oral argument set yet, the Court will once again hear Fisher v. University of Texas at Austin this year and consider the constitutionality of the consideration of race in public university admissions.
Round 1: Diversity in Admissions on the Table
No, it’s not déjà vu. You’re right to think that the Court already decided Fisher v. University of Texas at Austin. Two terms ago, the Supreme Court heard Fisher, which challenged the UT Austin’s consideration of race in seeking to promote diversity. The admissions plan automatically accepted high school seniors in the top ten percent of their Texas high school classes (which made up around 80 percent of admissions). Then, the university admitted the remaining 20 percent of the class by engaging in a holistic analysis that included race as one of many factors for students who did not qualify for admissions under the “top ten percent” plan. The challengers argued that the consideration of race as part of this holistic review violated the Equal Protection Clause.
The National Women’s Law Center filed a brief in Fisher back in the 2012-2013 term. In the brief, the NWLC argued that racial diversity in higher education is important to women, and especially women of color, because this diversity breaks down stereotypes that feed and perpetuate inequality, including intertwined race and gender stereotypes. Accordingly, a state university must have the freedom to consider race, among all the other considerations of a student’s background and identity that go into its admissions decisions, in order to assemble an incoming class that best prepares all students to succeed in a diverse world and advances the state’s interests in preparing future leaders of business and government.
In its decision in 2013, the Supreme Court preserved the ability of colleges and universities to consider racial and ethnic diversity as one factor among many in a carefully crafted admissions policy, because of the importance of student diversity in allowing a university to achieve its educational missions. The Court held, however, that the Fifth Circuit failed to apply the correct legal standard when evaluating the constitutionality of the UT Austin’s admissions criteria. So it sent the case back to the lower courts, and instructed the lower courts to consider whether the UT had shown that diversity could not be achieved by using other, race-neutral alternatives.
Round 2: Second Helpings of the Affirmative Action Fight
Well, the lower courts have completed their closer look at the case. And they once again upheld the constitutionality of the University’s admissions program.
Citing state educational data, the Fifth Circuit found that there are “stark” gaps in “the quality of education available” between racially-integrated high schools and non-integrated high schools. The Fifth Circuit stated,
Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s contributions to UT Austin’s diversity, including those that stem from race, holistic admissions would approach an all-white enterprise.
(It’s probably worth noting here that this wasn’t a rubber stamp approval of UT Austin’s policies, given that the Fifth Circuit isn’t exactly known for its progressive stances on social issues.)
So why did the Court agree to hear Fisher again? No one really knows. But there were more reasons to refuse to hear this case than to grant it. For one thing, as many have noted, there’s no real “case or controversy” because the plaintiff’s case is moot—she already graduated from another college and UT has made a strong showing that she wouldn’t have been accepted at UT Austin even if admissions did not consider race at all. It’s also worth noting that there’s a real chance the case might end up with a 4-4 split and no precedent setting opinion, given that Justice Elena Kagan will likely recuse herself from hearing the case as she did originally (she had worked on the case as Solicitor General).
Whatever the reason the Supreme Court is returning to this case, it presents questions of critical importance—not just for the students themselves, but for the workforce where those students will eventually land and society at large, all of which benefit from true diversity in higher education.