Supreme Court Sends UT Case Back to Lower Court

By Andrew Roush in Promote & Protect, Special on June 24, 2013 at 4:02 pm | No Comments

Some called it a non-decision, others said it could be a game-changer. Both sides claimed victory. So, what really happened in the Supreme Court’s Fisher v. Texas ruling?

After months of anticipation and national attention focusing on UT-Austin’s use of race in admissions, the Supreme Court announced its ruling in the Fisher v. The University of Texas case Monday—but the wait is not yet over. It wasn’t the complete removal of race from admissions that some had hoped for, nor did it completely validate the University’s position.

For now, UT’s admissions process, which takes into account an applicant’s race, won’t change.

In a 7-1 decision, the Supreme Court remanded the case back to a lower court, leaving the question open, and leaving admissions officials across the country waiting to see how race may continue to play a factor in admissions. Justice Anthony Kennedy, considered to be a swing vote on the court, sided with the majority and authored the court’s opinion. Justice Elena Kagan recused  herself, due to her previous involvement in the case as the U.S. Solicitor General.

While UT’s policy stays intact for the time being, the ruling may make the use of race in admissions more difficult than before. The well-respected SCOTUSblog explained the ruling this way:

The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary”–that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

The case was brought by Abigail Fisher, a white woman who claims that she was denied admission to UT because of her race. Fisher was offered admission under UT’s Coordinated Admissions Plan, which allows students in good standing to transfer to UT-Austin after spending their freshman year at another UT System university. She eventually earned a degree from Louisiana State University.

The University claims that its current admissions policy is in line with previous decisions which allow the use of race as one factor among many, and under which universities must demonstrate a “compelling interest” that justifies the use of race. Within the current policy, 75 percent of each incoming class is automatically admitted through Texas’ Top 10 Percent law, and the remaining 25 percent are selected through a process called “holistic review.” That process takes race into account, along with other factors like community service, essays, and extracurricular activities.

The case hinged on the notion of strict scrutiny, a tough judicial standard meant to ensure that government policies are constitutional. In previous cases, the court made it clear that government entities, like state universities, must prove that they have a compelling interest in creating diversity, and that their policies meet that interest.

“Strict scrutiny must not be ‘strict in theory, but fatal in fact,'” Kennedy wrote. “But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. ”

In her dissent, Justice Ruth Bader Ginsburg fiercely defended UT’s current policy. She noted that removing the specific race-based admissions criteria from holistic review would not truly remove consideration of race from the process, asserting that many metrics are closely correlated to race.

“Texas’ percentage [Top 10 Percent] plan was adopted with racially segregated neighborhoods and schools front and center stage,” Ginsberg wrote. “Only an ostrich could regard the supposedly neutral alternatives as race unconscious.”

Though the court didn’t rule in favor of either side, both Fisher and University administrators claimed victory.

At a press conference at the American Enterprise Institute (AEI) in Washington, D.C., Fisher thanked the justices for “moving the nation closer to a day when students’ race isn’t used at all in college admissions.” The plaintiffs noted that public universities may face a much tougher standard for the use of race due to Monday’s ruling.

AEI fellow Edward Blum, who recruited Fisher as a plaintiff, said public universities shouldn’t be excited by the ruling. “If they’re excited about this ruling I think it’s gravely misplaced,” said Blum, according to the Dallas Morning News.

UT President Bill Powers, himself a former dean of the UT School of Law, said the University is encouraged by the decision, and asserted that the University would continue to defend its policy. He said it was carefully crafted to fit the qualifications of previous rulings.

“I think we all hope that our society get to a point where [affirmative action policies] aren’t necessary,” Powers said at a press conference. “But we’re not there yet.” He stressed the importance of the careful consideration of race, and said it was important that UT’s policy is in line with the Constitution, and with previous court decisions.

The UT System also weighed in positively, with chancellor Francisco Cigarroa saying the System was ready to help defend UT-Austin’s admissions procedures.

“We stand ready to assist in any way possible in defending UT Austin’s admissions policy on remand and will seek to maintain a policy that sustains a diverse student population and follows the guidelines the Court has provided us,” Cigarroa said.

Journalists, higher education watchers, and legal experts reacted as the court’s decision was made public. You can see their reactions, and the full text of the decision below.

Fisher v. University of Texas Supreme Court Decision, June 24, 2013

Editor’s Note: The Texas Exes takes no position on the use of race in admissions.

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Photo by Marsha Miller courtesy The University of Texas at Austin.

Tags: Abigail Fisher, affirmative action, Fisher v. Texas, U.S. Supreme Court, ut austin