U.S. Supreme Court agrees to hear case challenging University of Texas’ “race-based” undergraduate admissions policy

The U.S. Supreme Court has granted review in a case, Fisher v. University of Texas at Austin, Docket No. 11-345, that asks whether the University of Texas’ race-conscious admission policies violate the rights of white applicants, reports CNN. Oral arguments would be held this fall, but a decision would not likely be issued until early 2013.

Abigail Noel Fisher individually sued the university after her college application was rejected in 2008 when she was a high school senior in Sugar Land, Texas. The school defends its policy of considering race as one of many factors, such as test scores, community service, leadership and work experience, that are designed to create a diverse campus.

In 2003, the Supreme Court held that state universities can narrowly tailor their admissions policies to consider an applicant’s race. That landmark case from the University of Michigan is the subject of current but separate appeals over a state ballot measure designed to eliminate any racial criteria. A divided federal appeals court in July 2011 concluded the voter-approved ban on “preferential treatment” at public colleges and universities was unconstitutional, and “alters Michigan’s political structure by impermissibly burdening racial minorities.”

The Texas case is complicated over the issue of “standing” and whether Fisher should even be allowed to bring her lawsuit. In accepting the case, the high court made no mention of whether the standing issue would affect its ultimate ruling. The court also announced Justice Elena Kagan will not participate in the case, as she apparently had been briefed on the issue as the Obama administration’s solicitor general before joining the high court. That leaves the possibility of a 4-4 ruling, meaning Fisher would not prevail and leaving undecided the larger constitutional questions presented.

The Michigan case was divisive, with Justice Sandra Day O’Connor the swing vote. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” O’Connor said. “The (Michigan) Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”

Justice Clarence Thomas, on the other hand, was among four conservative justices who found the policies unconstitutional. “The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results,” he said in dissent. ”Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.”

Despite that high court ruling, some states, including California, do not allow race considerations in college admissions. The issue now before an arguably more conservative high court is whether the Texas policies should be re-evaluated, as states have had nearly a decade to put such diversity considerations into place.

Source: CNN, 2/21/12, By Bill Mears

[Editor's Note: Although Fisher involves higher education admissions policies, it implicates K-12 student assignment plans, just as the 2003 University of Michigan undergrate admissions policy case, Grutter v. Bollinger, did. The Supreme Court's majority opinion in Grutter reaqffirmed the principle that diversity can serve as a compelling state interest and that the law school’s use of race to achieve a diverse student body was narrowly tailored to achieve that purpose. See the Legal Clips summary of that opinion (available to COSA members).

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle District No. 1 (PICS), 551 U.S. 701 (2007) that the student admission plans of two school districts were unconstitutional because they used race as a deciding factor in assigning students to particular schools. According to the Legal Clips summary of PICS (available to COSA members), the four-vote plurality—that part of the Chief Justice’s opinion in which Justice Kennedy did not join—also found that the districts’ plans were directed only at racial balance, "rather than any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits." The varied descriptions of the school boards’ goals, such as diversity or avoidance of racial isolation, amount to impermissible racial balancing, the plurality found, which is not a compelling state interest. Justice Kennedy’s concurring opinion broke with the Chief Justice’s opinion to the extent that the Chief Justice rejected diversity as a compelling interest. Justice Kennedy argued that diversity, "depending on its meaning and definition, is a compelling educational goal a school district may pursue." While he agreed with the plurality that neither school district had met its burden of demonstrating that its plan was "narrowly tailored" to meeting the goal of racial diversity, he expressed concern that "the plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race." He argued that schools "are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of systematic, individual typing by race."

Since PICS, school districts throughout the nation have sought to develop student assignment plans that strive for diversity while avoiding making race the deciding factor, heeding the warnings of PICS and Grutter, which characterized such policies as nothing more than racial balancing. For example, in December 2011 Legal Clips summarized a decision by three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) in Student Doe 1 v. Lower Merion Sch. Dist., which held that a Pennsylvania school district’s redistricting plan that makes use of racial demographics does not violate African-American students’ rights under Section 1981, Title VI of the Civil Rights Act of 1964 or the Fourteenth Amendment’s Equal Protection Clause. Although it affirmed the district court’s ruling upholding the plan under federal law and the federal constitution, the panel rejected the lower court’s application of strict scrutiny to the plan. The district court had employed strict scrutiny on the ground that the use of racial demographics amounts the classification of individual students based on race.]

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