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UPDATED: New test of college affirmative action

UPDATED Monday, Sept. 19, p.m.  This case has now been docketed as 11-345.  The response, if not extended, is due Oct. 19.


A white Texan denied admission to the state’s flagship university told the Supreme Court Thursday that it may need to reconsider its most recent ruling on the use of race in college admissions, arguing that a federal appeals court stretched that ruling so far as to permit a system of “blatant racial balancing.”  The argument was made as the closely watched case of Fisher v. University of Texas at Austin reached the Court in a new petition.  (A large file, found here, includes the petition and the lower court rulings.)  At issue is a system the University adopted seven years ago, layering it on top of a race-neutral policy that had already brought a new wave of minority students to the Austin campus.

The Texas case is one of two major college admissions test cases that have been developing since the Court’s 2003 decision in Grutter v. Bollinger — a ruling that upheld limited use of race in admitting students to the Law School at the University of Michigan in Ann Arbor.  The other new case also involves Michigan, but this time, the case deals with a statewide referendum banning the use of race in admissions.  Although the referendum was struck down by the Sixth Circuit Court in July, the en banc Sixth Circuit on Sept. 9 wiped out that ruling at the state’s request, and now will reconsider it before the full bench.  That case is unlikely to reach the Supreme Court for months.

In Texas, officials at the Austin university announced on the day that the Grutter decision was decided that they would adopt a new policy on admissions that would explicitly take race into account.  In the preceding seven years, the University had not used race as a factor.  Instead, it had relied mainly upon a system of automatically accepting for admission  all Texas high school seniors who had ranked in the top ten percent of their classes.  That plan, adopted by the state legislature, has accounted for as much as 81 percent of the entering freshman classes in Austin.

On top of the Top Ten Percent Law, the university — seeing an opening in the Grutter decision — adopted a plan to increase racial diversity in the university as a whole, and, in addition, to achieve racial diversity at the classroom level.  The aim, officials said, was to provide for admission of “underrepresented” African-American and Hispanic students, based on comparisons to the minority population statewide in Texas.  Race was thus added as a specific factor in a system of coding the admission calculations for those not accepted in the Top Ten Percent plan.  This coding is also used in selecting students for the academic majors they will pursue, to increase diversity in actual classes.

Abigail Noel Fisher, who is white, applied to attend the University in 2008.  At the time, she was a senior at Stephen F. Austin High School in Sugar Land.  She did not qualify under the automatic Top Ten Percent program, so she had to compete with all other Texas applicants for the less than 20 percent of the admission slots that remained.  After being denied admission, she sued the University, contending that her academic credentials exceeded those of many minority students who were admitted, and yet she lost out because of the race-based coding system.

A federal District judge and a divided Fifth Circuit Court upheld the program, interpreting the Supreme Court’s Grutter decision to mean that courts should respect the academic expertise of university officials when they decided “in good faith” that their programs required efforts to improve racial diversity.  Judicial review of a college’s use of race, the Circuit Court panel majority concluded, is less rigorous than for other official uses of race — such as in state employment or public contracting.  The en banc Circuit Court refused to rehear the case, dividing 9 to 7.

In Fisher’s petition to the Supreme Court, her lawyers argued that the Circuit Court panel claimed to be applying “strict scrutiny” to the race-based factor, and yet resorted to deference to the university on both the question of whether it had a compelling interest in using race, and whether race was used in a narrow way to achieve that interest.

Faulting the Circuit Court panel for supposedly reading too much into Grutter, the challenging appeal argued that the majority actually had adopted an entirely new standard for judging race, specially crafted for the college context.  The more relaxed standard, according to the petition, was relied upon in accepting the University’s attempt to make its student body, and its individual academic major programs, more closely reflect the racial makeup of the Texas population as a whole.  The petition also said that this standard enabled the Circuit Court panel to embrace classroom diversity as a proper academic goal — a novel justification for using race as a deciding factor.

“Stripped of its two unconstitutional ends (racial demographics and classroom diversity), UT has failed to establish under any legitimate standard…that the use of race in admissions is ‘necessary’ to enroll the ‘critical mass’ of minority students that the educational benefit of diversity justified,'” the petition asserted.

Even before 2004, and the return that year to the use of race in admissions, the University had already become “one of the most diverse public universities in the nation,” according to the petition.  Thus, it had no real reason for returning to the use of a race-based policy on any admissions, the petition said.

While much of the petition suggested that the Circuit Court had misread Grutter, the concluding pages of the document argued that, if the Circuit Court’s interpretation of that decision was correct, the Supreme Court’s ruling  “should be clarified or reconsidered to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”

The petition has been filed in time for the case to be ready for consideration by the Justices soon enough to allow review during the current Court Term.  The University has 30 days to respond to the petition, unless it obtains an extension of time to file.

Recommended Citation: Lyle Denniston, UPDATED: New test of college affirmative action, SCOTUSblog (Sep. 15, 2011, 10:59 PM),