The United States Supreme Court has decided to hear the case of Fisher v. University of Texas, a case that once again gives the court the ability to evaluate affirmative action admission policies at institutions of higher education.
The facts of the case are that two plaintiffs, Caucasian women who were not admitted to the University of Texas, are claiming that they were not admitted because of the race conscious admissions procedures at the University of Texas. They aruge the admissions procedure is unconstitutional. Their case was heard in a district court in Texas, where the judge awarded summary judgment (judgment without a trial), stating that the UT admissions procedure is constitutional. The plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit, where the admissions procedure was again found constitutional by a three judge panel, unanimously agreeing. The plaintiffs asked for a panel of all of the the U.S. Court of Appeals for the Fifth Circuit judges to hear the case, which was declined. The plaintiffs then appealed to the United States Supreme Court, who has decided to hear the case.
SEE THE OTHER SIDE: Supreme Court Should Overturn Affirmative Action
University of Texas has a two-part admissions system. Part one is based on a law passed by the Texas Legislature called the Ten Percent Law, which automatically admits every student who graduates in the top ten percent of their class, regardless of race, school location, etc. Part two of the admissions process is a system that includes two indexes, the first index (AI) based solely on academic performance, and another index (PAI) which takes into account personal adversity, socio-economic status, and race among other factors. The case only deals with part two of the admissions process, a process that is only responsible for 12% of the applicants admitted to the University of Texas on an annual basis.
Race is only one factor in the PAI and it is this factor that the plaintiffs are seeking to strike down. The University of Texas only decided to include race after a comprehensive study of their university, which had several important findings. 1) Without the PAI race factor, African-Americans represented only 4.5% of admitted students and Hispanic students represented only 16.9% of admitted students, compared with African-Americans making up 11.8% of the Texas population and Hispanics making up 37.6% of the Texas population. 2) When UT looked at small classes where diversity was particularly important, classes with between 5 and 24 students (Note: These classes comprise the majority of Undergraduate courses at UT), they found that 90% of the classes had zero or one African American student, 46% had zero or on Asian American student, and 43% had zero or one Hispanic student. 3) When students themselves were asked about their perception of diversity on campus, an overwhelming majority of students said that they felt there was an insufficient minority representation to experience the full benefits of diversity in the classroom.
The University of Texas went through intense deliberation to devise a plan that would be in accord with the U.S. Supreme Court’s decision in Grutter, the most recent U.S. Supreme Court case on affirmative action, which laid out the proper way for a school to take race into account in their admissions process. According to both the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit, the UT plan is in accordance with the court’s opinion there.
Beyond the statistics at the University of Texas, which should alarm any person that is concerned about the lack of diversity in higher education, there is a broader argument to be made in favor of affirmative action. This argument was best laid out by President Lyndon B. Johnson in his commencement address at my Alma Mater, Howard University in 1965 when he announced the beginning of affirmative actions programs by stating:
“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity.”
It is clear that not all of our citizens, especially African-Americans and Hispanics, have gained the ability to walk through the gates of opportunity, and admissions procedures like the one at UT are a small boost in that direction.
When the case gets to the U.S. Supreme Court, it will be heard by only eight of the nine Justices, as Justice Kagan has recused herself from deciding the case because she advocated for the University of Texas as U.S. Solicitor General. This leaves two outcomes in my opinion, either a 5-3 decision if Justice Kennedy sides with the four conservative justices which will overturn UT’s policy and likely end race conscious admissions programs in the entire country, or a 4-4 decision if Justice Kennedy sides with the more liberal-leaning Justices, in which case the Supreme Court will issue a per curiam decision with little to no opinion upholding the decision of the Fifth Circuit. If this happens race conscious admissions process live to fight another day.
Note: All facts and statistics not specifically hyperlinked are from the U.S. Court of Appeals Fifth Circuit decision hyperlinked as Fisher v. University of Texas
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