Affirmative Action Supreme Court Case: How SCOTUS May Rule on Fisher vs University of Texas

Supreme Court precedent is a powerful thing and in affirmative action cases such as Fisher v. University of Texas - Austin, it can radically redefine how we look at race in regards to education. Fisher v. University of Texas will be the first affirmative action case since 2003, a case in which the Court's decision barely kept affirmative action alive, at a 5-4 margin.

Now after agreeing to hear the case for their October session, the Supreme Court has a new landmark affirmative action case scheduled. Fisher v. University of Texas is the latest challenge to university admissions’ affirmative action process since the Bollinger cases in 2003.

UT-Austin had won the U.S. Court of Appeals case last year in New Orleans, substantiating their admissions process as fitting within the set standards of the affirmative action process, but with Justice Elena Kagan’s recusal this time around, there is one less voice on the Court to support their argument.

In order to uphold the lower court’s ruling, a decision of 4-4 (a tie) or 5-3 (or higher) in favor of the University of Texas must be concluded. If SCOTUS rules in favor of Fisher (5-3 or higher), the result is a reversal of Grutter v. Bollinger, overturning all college affirmative action admission policies. If Fisher wins her case, then race can no longer be a factor when admitting students to college and effectively end universities’ diversification practices.

When Abigail Fisher applied to the University of Texas at Austin in 2008, she was not granted admission under the university’s primary admissions program: the Top Ten Percent plan, which admits the top 10% of all high school graduates regardless of race, sex, etc., because she was not qualified. TTP made up 81% of the incoming freshmen class and Fisher was not admitted in the remaining 19% either. She filed a complaint against the university policies, a complaint that considered race to determine the diversity of the student body.

The admissions process has seen an increase in diversification efforts, but talents and leadership abilities are noted along with race to have major impressions on a student’s application. 

The first “affirmative action” cases are typically noted as Brown v. Board of Education I & II, where the Supreme Court overturned the “separate, but equal” claim in order to guarantee a truly equal education for young African American students. Brown v. Board set the precedent that the Supreme Court had the power to address race as a factor in education and had obligatory duties to apply it to the Fourteenth Amendment’s equal protection clause.

The first affirmative action in the university setting is in 1977 with University of California Regents v. Bakke, which set the foundation for all the debates around whether affirmative action should or should not exist in the college admissions process. It is worth noting that all cases dealing with higher education affirmative action have been filed by caucasians insisting their equal protection rights have been violated.

The UC medical school at Davis had a racial quota of 16 minority students in each admitted class of 100 to combat the long unfair minority exclusions. Allan Bakke, a caucasian male, was twice denied admission to the UC’s medical school despite having higher test scores and GPA than any of the admitted minority students.

In a split decision, the Court voted that a racial quota system was in violation of the Civil Rights Act of 1964, but also that using race as factor for the admissions process in higher education was permissible.

Affirmative action does come up again in this setting until 2003 in Grutter v. Bollinger. Barbara Grutter, a caucasian female, was denied admission at the University of Michigan law school despite having a 3.8 GPA and a 161 LSAT, she filed a complaint against the university because of its admission that race was a factor in accepting students, serving a “compelling interest in achieving diversity among its student body.” The Court in another 5-4 decision upheld a narrow policy in which race was a factor and is not in violation of Fourteenth Amendment’s equal protection clause and thus allowed.

The last precedent is Gratz v. Bollinger, where affirmative action really gets complicated. Jennifer Gratz, like Grutter, filed a case against the University of Michigan for getting denied admission to their undergraduate school. Again the school noted their interest in fostering diversity of underrepresented minorities on campus, stressed in their point system admissions process in which minority status weighed at heavier point values.

Decided at the same time as Grutter v. Bollinger, the Gratz decision determined that race could not be measured on a point system assigned to each applicant, meaning that being a racial minority would count toward a total that also measured test scores, leadership abilities, and the alike.

Gratz is a limitation on Grutter in the fact that colleges and universities have to find a measurable, but not a quantitative way, to account for race in their admissions process.

***

How They Could Vote:

The University of Texas case will be heard by only 8 Justices in October. Justice Elena Kagan has recused herself because of her previous role solicitor general in the lower court’s case. Kagan’s vote could have proven crucial, but let’s look at where the others might fall.

Three justices have personal experience with affirmative action. One positive: Justice Sonya Sotomayor; and two justices negative: Justices Samuel Alito and Clarence Thomas. Thomas had to face skepticism of his intelligence after his graduation from Yale law school, as some employers thought that his degree was due to affirmative action policies rather than his own abilities. Thomas has called affirmative action a “cruel farce” and a “badge of dishonor.”

Thomas dissented against Grutter, which upheld affirmative action and voted in the majority for Gratz, which limited affirmative action. Thomas’ view on affirmative action is that they are policies of reverse racism, and is thus staunchly opposed their existence in general.

Thomas: In favor of Fisher

Alito, despite coming from a working class family was involved in a group called Concerned Alumni of Princeton that worried about the increased number of women and minorities admitted to Princeton. This already makes a strong case where he might vote, but Alito has only been on the Court since 2006, after both Grutter and Gratz were decided so he has not been on the Court to hear a case on higher education affirmative action.

There is another aspect though, a public school affirmative action case: Parents Involved in Community Schools v. Seattle School District No. 1, which addressed the issue of school districts assigning children their public school in order to achieve racial integration. The Court, Alito included, decided that the state could not assign public schools for this purpose and denied it “compelling state interest.”

On the flip side, the case dealt with racial integration and desegregation rather than a justification for just greater diversity (the common defense in higher education affirmative cases) and Alito has not always voted against discrimination cases (see the age-discrimination case Gomez-Perez v. Potter).

Alito: In favor of Fisher

Justice Sonia Sotomayor has personal experience with affirmative action. She admits that she is a “perfect affirmative action baby,” acknowledging the disparity in her test scores in comparison to other accepted Princeton undergraduate and Yale law students. Because Fisher could eliminate affirmative action, it is likely that Sotomayor will pull weight from her personal life in her decision and vote to give others the same gracious chance she was.

Sotomayor: In favor of UT-Austin

Both Justice Ruth Bader Ginsberg and Stephen Breyer were around for Grutter and Gratz. Ginsberg voted in favor of affirmative action in both cases, Breyer on the other hand voted in favor in Grutter, but not in Gratz because of the UMichigan’s point system’s similarities to the quota system overturned in Bakke. Despite this, the Grutter decision is a greater indicator because of its support for affirmative action in a general sense. It is unlikely either will vote to eliminate affirmative action policies.

Ginsberg: In favor of UT-Austin 

Breyer: In favor of UT-Austin

Kennedy has voted against every pro-affirmative action case during his tenure, but because of de facto “swing vote” position on the Court after O’Connor left, he may prove to not be so predictable. It is doubtful that he will rule against his own precedent though.

Kennedy: In favor of Fisher

Scalia, like Kennedy, has voted against every pro-affirmative action case, but in 2003 he confirmed his stances against affirmative action. The same year as Grutter and Gratz, the Supreme Court declined to review a Denver case about an affirmative action program to help minority-owned and female-owned construction companies. The interesting fact about this denial of review is that Scalia took the unusual step to dissent the Court’s action. Scalia accused his colleges of undermine the “colorblindness” principle found in the Fourteenth Amendment’s equal protection clause. What this translates to is that affirmative action is (to Scalia) in fact reverse discrimination, giving minorities and women a leg up on average white citizens.

Scalia: In favor of Fisher

Chief Justice John Roberts was not around during Grutter or Gratz, but he wrote the majority decision on Parents v. Seattle so that might prove to be his positive connection with Fisher. He noted in the decision, that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” It is worth noting however, that of the “conservative wing,” Roberts has been the least vocal on affirmative action.

Roberts could easily decide that affirmative action is no longer needed and should not be protected by the FourteenthAmendment or that Fisher herself is responsible for not being eligible for the TTP program.

Roberts: Leaning in favor of Fisher

So it looks like a 5-3 decision in favor of Fisher. That might be killer to low-income college applicants across the United States. It could mean that they will not be able into college simply because of an earlier education disadvantage. It also might change diversity in college and limit the land of opportunity for minorities and limit educational progress; at least the top 10% to15% of colleges and universities.

This decision could mean an elimination of programs that target minority students to look into higher education, from outreach and targeted recruiting programs to scouting for college athletes. While academics should arguably be the focus over sports, if state schools renowned for their sports programs can’t get talent into their program because they couldn’t get into the school academically, their endowments and alumni donations could drop without the strong sports program. This decrease would then affect academics, as schools would have to start financial readjustments.

Because affirmative action is to mitigate disadvantages associated with longstanding, historical discrimination, Deidre Bowen of Seattle University noted that minority students experience more hostility at institutions where affirmative action admission policies are ban than students in other pro-affirmative action schools because of extremely stigma attached to their underrepresented student population.

Others say that overturning affirmative action will actually help the education system in America, by eliminating stigmatized environments, negative stereotypes, and self-confidence issues. Now there are some generalization, stereotypical points in the article to keep in mind, but it does raise a point about a disparity in academic performance based on racial preferences. The justification in The Atlantic article is that certain systems extend “… the equivalent of hundreds of SAT points” to African Americans and Native Americans in contemporary racial preferences.

In Fisher, there is some backup this as well. The typical African American student was in the 52nd percentile of the SAT while the average Caucasian student was in the 89th percentile. Now that is a huge difference and may make the case in favor of Fisher, but it may also mean an important caveat that may prevent a full overhaul of affirmative action and instead just create another limitation.

Such a difference in admission by SAT scores could mean SCOTUS announces the need for a national/state/university-level system to address the disparity between admission and more clearly defines what is allowed in affirmative action. What this might mean is simply making it unconstitutional to have a 37-point differential in SAT admissions, using different levels of SAT scores for admission, or even a move away from SAT scores as being a huge factor in applications too.

Another possibility with a pro-Fisher ruling is that the current admission plan, the TTP already accounts for race and thus race is not needed in determining the rest of the admission slots.

In any case (sorry for the pun), there is enough uncertainty right now to make tomorrow, when the Court will hear the oral arguments, extremely interesting. 

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Jeff Raines

A Political Science major at American University in Washington D.C. He identifies as a progressive and has a passion for education. Jeff has been featured on the campusprogress.org, Pushback.org, and New Deal 2.0, & eduwonk.com

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