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College admissions case: Made simple

Editor’s note:  During the Supreme Court’s summer recess, the blog is publishing a series of posts that explain, in non-legal terms, some of the most important cases that will be decided in the new Term that starts October 1.  This is another in that series.  It explains the case of Fisher v. University of Texas at Austin.  Beginning next Tuesday, the blog will be hosting a symposium on that case.


America’s Constitution embraces the cultural ideal that all persons are equal, and that race should not be a dividing line in who gets to benefit from public policies or programs.   But the Supreme Court has spent decades sorting out what remedies are constitutionally acceptable when opportunity does not appear to be open equally to all who seek it.   If opportunity was explicitly denied because of someone’s race, the remedy, of course, is to end that discrimination.  But the other side of the constitutional issue is whether and when race can be used to try to break down what are seen as barriers to equality.  That is the issue the Court faces in cases about “affirmative action,” an issue that it will confront again in October.

Some of the highest-profile cases that the Court has decided on the “affirmative” use of race involve policies that control admission to colleges and universities — that is, those institutions that are operated by state or local governments.  The Constitution does not apply, in general, to private colleges, except in programs paid for with public funds.   The last time the Court ruled on public college admissions policies based partly on the race of the applicants was nine years ago.   Illustrating how difficult this issue can be, the Court at that time allowed the University of Michigan Law School to use race as one factor in the selection of those it will admit, but it struck down a different approach that was more closely tied to race that governed admissions to the same university’s undergraduate classes.

The decision in the law school case prompted the trustees of the University of Texas at Austin, the leading public university in that state, to adopt its own version of an admissions program for undergraduates, with race as a contributing though not controlling factor.   A young white woman from Sugar Land, Texas — Abigail Noel Fisher — had applied for admission as a first-year student in the fall of 2008 when that policy was in effect.  As a resident of Texas, she would have been admitted automatically if she had finished her high school career in the top ten percent of her class, but she did not.   That “Top Ten Percent Plan” had been passed by the state legislature in 1997, after the federal courts had struck down an earlier admissions policy that took race into account.

The “Top Ten Percent Plan” — still in effect — has filled more than eighty-five percent of the available slots in the entering freshman class, so Ms. Fisher was competing for admission with a much smaller group. and she did not make the cut.  She believed that it was because of her race.

Although the Ten Percent approach had resulted, in fact, in a rising number of minority students being admitted, the University’s leaders believed they could do better if race were put back into the mix, and they took the Supreme Court’s ruling in the Michigan law school case as permission to do so.   The Supreme Court had ruled that “racial diversity” is a valid goal in higher education, and that college officials may try to advance that goal if they are careful not to make race the decisive factor by itself.   In Austin, college leaders worked out their own plan, patterned after Michigan’s, and put it into effect in 2005.   Like the Michigan version, the overall aim was to work toward achieving a “critical mass” of minority students studying in Austin.

The plan was keyed to the educational benefits that the University saw in “racial diversity” in preparing students for their future lives in work and in society.  Wider exposure to ideas and cultures was necessary, the leaders believed, and they said that was especially true at the flagship university since it was preparing the future leaders of the state — a state with an increasingly diverse population.   The goal of the plan was to bring university enrollment overall more closely in line with the state’s overall population diversity.  But this goal was not set up only for the university as a whole, but also at the classroom level, and in the major fields of study.

Race is taken into account as part of a personal achievement index that is used along with an academic index — that is, one based largely on grades.  A given applicant’s race is just one factor in the personal achievement ranking, and the University insists that it does not control outcomes on its own; admissions officers look at each student, it insists, in a “holistic” way.

In practical operation, the Austin plan has achieved the “diversity” results the University sought: the University of Texas vaulted into the sixth spot nationally in producing undergraduate degrees for minority groups.   In the admissions in 2008, overall enrollment of black applicants had doubled, that of Hispanic applicants rose 1.5 times, and Asian-Americans, nearly ten percent.   Some part of that, of course, was due to changes in Texas’s overall population, with the state’s Hispanic population growing at a very rapid rate.

Ms. Fisher (and another white applicant no longer involved in the case) sued the University after they were denied admission.   Although Ms. Fisher went on to college at Louisiana State University and has since graduated, she remains the central figure in her case, with her lawyers insisting that she still has a legal interest in it.   She lost in a U.S. District Court, and in the Fifth Circuit Court — a regional federal appeals court.   In the appeals court, the three judges were divided two to one in favor of the University plan.   When Ms. Fisher’s lawyers tried to get the case reconsidered by the full Fifth Circuit Court (a larger panel), she lost, nine to seven.

In rejecting Ms. Fisher’s challenge, the three-judge Circuit Court found that the University had correctly applied the constitutional standards that the Supreme Court had fashioned in the Michigan law school case.   It said that the University could legally try to achieve a “critical mass” in minority admissions through increased variety of views expressed in classroom discussions, in preparing students to be professionals in “work and citizenship,” and in preparing them to engage actively in the nation’s civic life.    Race can be used, that court said, only if it allows for a look at each individual applying for admission as an individual, and applicants of all races are entitled to the same kind of evaluation.   No racial stereotypes may be used, it said, and there cannot be any racial quotas nor separate admission groupings according to race.  Finally, it said, the University cannot award a fixed number of bonus points to minorities in calculating individual indexes.   The fact that the University has promised to review the program every five years, to assure that it is still working to achieve its goals and is staying within constitutional limits, counted in favor of its plan.

Ms. Fisher’s lawyers took the case on to the Supreme Court last September.  They raised a single question: whether prior Supreme Court decisions on racial equality, including the latest college admissions decision in 2003, permit the University of Texas to use race in the selection of its freshman classes.   The Court announced in February that it would hear the case, but it noted that Justice Elena Kagan will not take part in the case.   That was not explained, but it appeared to be because she was serving in a high-level position in the Justice Department when the case was moving through lower federal courts and the government had a policy favoring some use of race in college admissions.

With eight Justices taking part, there is always a chance that the Court, in reaching a final decision, will split four to four.  If that happens, it will result in a simple, one-line decision announcing that the Fifth Circuit Court’s decision is being upheld.  That will be a binding outcome for this particular case, but it does not set a binding precedent for any other case even though the same issue arose again.   The University, however, would have won the case, and its current plan would have passed the constitutional test.

The Supreme Court has scheduled a one-hour hearing on the case on October 10.   There is no set timetable after that for it to announce its decision.  It will take five votes among the eight participating Justices to reach a definite decision for or against the Texas plan.


Recommended Citation: Lyle Denniston, College admissions case: Made simple, SCOTUSblog (Aug. 30, 2012, 9:33 AM),