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The mystery of Fisher II review


The volatile constitutional issue of race as a factor in selecting the entering classes at public universities and colleges returns to the Supreme Court next Term, but it is far from clear at this point just why the Justices are stepping back into that enduring controversy, and where it will end up.  The Court has a wide range of options on how to decide a new case involving the University of Texas, and lawyers — perhaps necessarily doing some guesswork — may find it quite challenging to shape their written arguments to cover that range.

The Court, of course, never explains fully at the outset why it is taking on a case, although it sometimes rewrites the legal questions either to suit its own preference or to narrow the scope of what it plans to decide.  But, if it does not do that, the only specific clue of what is at stake is the wording of the questions that the lawyers lay before the Court and the arguments in their opening papers, and those may not be enough to solve the mystery.  That seems true of the Court’s review — for the second time in two years — of a claim that Abigail Noel Fisher was denied admission to the university in Austin seven years ago because she is white.

One part of the mystery is why the Court has seemed to accept that Fisher has something legally significant at stake, supporting her right to sue.  The fact that her claim goes back to 2008, and the added fact that she has since graduated from another university, have been cited twice by the university — both times unsuccessfully — in trying to persuade the Court not to get involved.  In deciding the case the first time, in 2013, the Court simply ignored that issue — a hint, at least, that it did not think it actually was an issue, and that there remains a live legal dispute between the university and her.

By granting review in late June, the Court may have opted to ignore that question again.  The Court might well have concluded that it has invested so much in this dispute up to now that it had to go forward and try to decide it, once and for all.  At least some members of the Court probably are not satisfied with the way the U.S. Court of Appeals for the Fifth Circuit decided the case after it was sent back there two years ago.

The Justices ordered that second look, ruling that the Fifth Circuit on the first try had not applied a sufficiently strict standard in judging the university’s claim that it had to make some use of race to achieve its goal of racial diversity on its campus.  It was fine, the decision said, for a court to accept the university’s view that such diversity had academic benefits, but it was up to a court to judge for itself whether any use of race was truly necessary to bring that about.   (That ruling was decided by a seven-to-one vote, with Justice Elena Kagan not taking part — presumably because she had been involved in the case in lower courts when she was the Solicitor General.  She will not take part in the new review, either.)

The Fifth Circuit, dividing two to one, once again upheld the University of Texas’s plan.  Dating from 2004, that plan makes some use of race in deciding which students are chosen to enter each year.   Race is only taken into account by admissions officers, however, after about eighty percent of each freshman class is already filled.   Most of each class is chosen automatically:  any student who graduated in the top ten percent of a high school graduating class in Texas is entitled to entry, if he or she wishes.

The remaining seats are filled by a competitive system that is based, the university says, on evaluations of applicants as individuals.  University officials insist that students are chosen in this group by a “holistic” method, looking at individuals’ academic and other achievements, life experience, and overall potential for success — and, in a measure that is not a hard-and-fast percentage, their race.   It is not intended, and does not work as, a quota system, according to the university.

Fisher had to compete in that smaller pool, because she did not finish in the top ten percent of her high school graduating class in Sugar Land, Texas.   She has claimed continuously that she was not admitted because of her race, and the university has argued repeatedly that she would not have qualified for admission in any event because she did not measure up.  That dispute has never been resolved, and the Justices have apparently seen no need to decide it.   They have focused on the admissions process, not on what happened to Fisher herself.

When her lawyers took the case back to the Supreme Court, they raised a single question: whether the Fifth Circuit’s new approval of the use of race satisfies past Supreme Court rulings on the Fourteenth Amendment’s guarantee of legal equality — including the 2013 decision in “Fisher I.”

Just what issues are included in that broad inquiry?  How might the Court answer that question this time  — that is, what are the actual or potential options in Fisher II?

It is probably not at all a realistic option, given the Court’s apparent fascination with this particular case, but it would still be open to the Justices to find that the passage of two more years has even further diminished Fisher’s claim, and then order the case dismissed without a new ruling on the Texas plan.  After all, the Fifth Circuit had said, in its latest ruling, that no other university had taken the same approach as Texas, so the ruling provides “no template for others” to follow.  On close examination, the Justices may agree that the case has shrunk.  Still, the Justices could have ended the case by simply denying review this time — but they declined to do so.

The most sweeping potential would be for the Court to adopt an even more restrictive view of when the Constitution allows colleges and universities to use “affirmative action.” This does not seem very likely, however, for two reasons.  First, its Fisher I ruling ordered the Fifth Circuit to apply the most demanding standard there is for judging a race-based policy — “strict scrutiny” — so it would be difficult to make that tougher.  Second, the Court has shown no inclination to overrule outright the most recent ruling allowing the use of race in college admissions — its 2003 decision in Grutter v. Bollinger — and Fisher’s lawyers again have not asked for that specifically.  If the Court is now of the view that the Fifth Circuit was not tough enough on the university’s rationale for some use of race, it might try to fashion some new guidance for the lower court — an option that would probably spell eventual doom for the “holistic” plan at Austin, leaving only the “Top Ten Percent Plan” to achieve racial diversity as best it can.

Keeping just the “Top Ten Percent Plan” at the University of Texas is, in fact, the specific goal of Fisher and her legal team, although they would be more than happy if the Court were somehow to sharply curtail the option of using race in college admissions.  (The same legal team is pursuing two new cases in lower courts, against Harvard University and the University of North Carolina at Chapel Hill, in a new attempt to challenge the Grutter precedent.  Both of those universities have asked federal judges to put those cases on hold until the Justices decide the latest round in Fisher’s case.)

One potential avenue for new guidance would be for the Court to refine the concept of “critical mass” — that is, the point at which a college admissions plan produces enough minority students with special promise of succeeding in college to achieve the academic goal of racial diversity, broadly defined and not just a racial quota.  The Court has been largely content to leave the academic understanding of such a “tipping point” to university officials, focusing instead on what race-conscious policies can be used to reach “critical mass.”  It could now provide a more demanding court review of admissions officials’ view of the diversity goal itself.  One of the key complaints of the dissenting judge in the Fifth Circuit, in fact, was that the University of Texas had not made sufficiently clear its view of “critical mass” and how to attain it.

The least that the Court might do to answer the question raised by Fisher is to make its own analysis of the “holistic” plan, after concluding that there would be no realistic value in telling the Fifth Circuit to try once more and that there is no way to provide any more guidance than it had laid out in its earlier decision.  It is not a sure thing that the university’s plan would fail that direct test, because the Court might wind up seeing the “holistic” plan in the same favorable way that the Fifth Circuit majority had, with a tightly focused analysis of the special demographics of Texas.  The effort would be to keep the decision narrow.  Still, the strength of the dissenting opinion in the Fifth Circuit would make such a test a rigorous one for the university.

The most intriguing prospect would be for the Court to make the decision turn on an issue that Fisher’s lawyers say entered the case late: whether a university can adopt an admissions plan that views applicants differently based on whether they went to racially segregated high schools with lower academic performance ratings.   That is the so-called “diversity within diversity” rationale.  In one sense, and as portrayed by the lawyers attacking the Texas plan, this involves a focus on racial stereotyping, treating minority graduates of segregated high schools as inferior, as a group, as potential college students.   But in another sense, and as used by the Fifth Circuit, it is a way, in the “holistic” phase of the admissions process, to look at the characteristics of each individual applicant that would make him or her better able to add to the richness of diversity on campus.

How did this rationale work in the Fifth Circuit’s decision?

The majority of that panel found that the basic plan, admitting the top ten percent of graduating seniors, was a race-blind system that nevertheless did draw to the Austin campus a significant number of minorities.  Why was that so?  The plan, the opinion said, centers on the major population centers of Texas, the urban areas where racial segregation prevails in housing, neighborhoods and schools, and thus an automatic ten percent of those schools’ top graduates will be minorities.

But the Fifth Circuit, citing state educational data, found that there are significant “gaps between the quality of education available” depending upon whether a given school is racially integrated.  Those gaps, it said, were “stark,” resulting in lower college test scores for the graduates of the segregated schools.  “The racial makeup and relative performance of Texas high schools,” the opinion said,  have a direct bearing on whether true racial diversity, in the broadest sense, can be achieved at the University of Texas using only the Top Ten Percent Plan.

The state legislature, that court noted, endorsed the Top Ten Percent Plan as a way to achieve diversity in college ranks without making race a specific admissions factor.  However, in actual operation, it said, that plan is actually a quota system that only seems on the surface to be race neutral.   The plan does increase minority admissions “by skimming from the tops of Texas high schools,” it added, but that happens “against the backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and forty percent of black students attend a school with ninety to one hundred percent minority enrollment.”

While praising the top graduates of “underfunded and under-performing schools” for excelling “in the face of severe limitations in their high school education,” the court said that the plan which gave them admission to eighty percent of the available slots left out other potential students who were not in the top ten percent “but excelled in unique ways that would enrich the diversity of UT Austin’s educational experience.”  That, it went on, “leaves a gap in an admissions process seeking to create the multi-dimensional diversity” that has academic value.

That gap, according to the university, was to be filled by the “holistic” admissions process that selected individuals for the remaining twenty percent or so of each entering class.  This back-up plan, the Fifth Circuit agreed, draws to Austin a pool of students — both white and minority — who have “records of personal achievement, higher average test scores, or other unique skills.”  In short, it said, those applicants “could bring a perspective not captured by admissions along the sole dimension of class rank.”

The university, the Fifth Circuit majority said, had made the case “that this reach into the applicant pool is not a further search for numbers but a search for students of unique talents and backgrounds who can enrich the diversity of the student body in distinct ways.”  The “holistic use of race in pursuit of diversity is not about quotas or targets, but about its focus upon individuals, an opportunity denied by the top ten percent plan.  Achieving the critical mass requisite to diversity goes astray when it drifts to numerical metrics.”

Whether or not this “diversity within diversity” rationale is a novel feature of the Fifth Circuit’s latest ruling (the university argues that it is neither new nor novel), Fisher’s lawyers have made it a centerpiece of their new appeal, arguing that the ruling “is based on demeaning and unfounded stereotypes about less-privileged applicants from minority communities” and actually was adopted by the university “to enroll more affluent minorities.”  The university counters that the challengers are seeking to create “a straw man” and making use of heated rhetoric to enhance their chances before the Court.

These vivid exchanges are at the heart of the opening papers filed by the two sides in the case, and they may well have led at least four Justices — the minimum needed to grant review — to conclude that Fisher II is not a shrunken version of Fisher I, but is of equal if not greater significance as a test case on college affirmative action.







Recommended Citation: Lyle Denniston, The mystery of Fisher II review, SCOTUSblog (Jul. 21, 2015, 12:09 AM),