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Supreme Court preview: Will Affirmative Action survive?

Supreme Court preview: Will Affirmative Action survive?

Wednesday argument in Fisher v. U. Texas over “plus factor” for minority applicants.

The United States Supreme Court will revisit affirmative action in public university admissions on Wednesday, when Fisher v. University of Texas at Austin returns to the high court for the second time.

As the Supreme Court previously explained, the University of Texas (“UT”) has a two-part admissions system.  First, under Texas’s statutory “Top Ten Percent Law,” any student graduating from a Texas high school in the top 10% of their class is automatically admitted.

Second, students not admitted pursuant to the Top Ten Percent Law are given numerical Personal Achievement scores by combining academic achievement and a “Personal Achievement Index” (“PAI”).  The PAI:

measures a student’s leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s back-ground. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.

From 1997 to 2003, the PAI had no racial consideration.  UT admissions were entirely race neutral.

In 2003, the Supreme Court affirmed consideration of race as a “plus factor” in admissions.  UT subsequently reviewed its student body composition, concluded that minorities were inadequately represented, and added race as a component of the PAI for the express purpose of achieving a “critical mass” of minority students.

Admission of applicants assessed by their API is extremely competitive.  UT allots 90% of total admissions to applicants from Texas, the other 10% going to students from other states and international applicants.  In 2008, 81% of the entire entering class was admitted pursuant to the Top Ten Percent Law, leaving only 9% of the class to all other Texan applicants.  The Top Ten Percent Law now accounts for 75% of total admissions.

Two Caucasian women who graduated from Texas high schools but outside the top 10% of their classes, applied to UT in 2008 and were rejected.  They sued in the United States District Court for the Western District of Texas, alleging in relevant part that “admissions policies and procedures currently applied by [UT] discriminate against Plaintiffs on the basis of their race in violation of their right to equal protection of the laws under the Fourteenth Amendment[.]”

In 2009, the District Court granted UT’s motion for summary judgment.  In 2011, the 5th Circuit Court of Appeals affirmed.  Both courts relied in part on their interpretation of Supreme Court precedent as requiring that “a university’s educational judgment in developing diversity policies is due deference.”

In its first visit to Fisher, the Supreme Court reversed and remanded the 5th Circuit’s 2011 decision in a 7-1 vote with Justice Ginsburg dissenting and Justice Sotomayor not taking part.  The Court affirmed that deference is due to the University in determining whether to pursue a diverse student body as integral to its own educational mission, but held that no such deference is due to the University’s method of achieving that goal.

The District Court and 5th Circuit improperly conflated the two:

The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.


it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.”


The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.  If “‘a nonracial approach. . . could promote the substantial interest about as well and at tolerable administrative expense,'” then the university may not consider race.  [citations omitted]

The Court remanded to the 5th Circuit, holding that,

a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” [citation omitted]

Here are excerpts of the oral argument in the first time Fisher was before the Supreme Court:

On remand, the 5th Circuit again affirmed that UT’s admissions system passes strict scrutiny.  The court seemingly deferred to UT’s argument that its academic mission is served by admitting highly qualified minority students not graduating in the top 10%.  As such, the question would be whether UT’s admissions policy is narrowly tailored to admitting those highly qualified minority students not graduating in the top 10%, as opposed to minority students more generally.

The court noted the lower achievement of students admitted pursuant to the Top Ten Percent Law as compared to other Texas student admitted pursuant to the holistic PAI approach, and adopted UT’s argument that less-qualified minority students are admitted from from the top 10% of poorer schools, while more-qualified minority students are denied admittance after graduating outside the top 10% of better schools.

UT argues that without some accounting for race, some of the most qualified minority students with the most potential for success would not be admitted.

On this upcoming, second appeal to the Supreme Court Fisher makes two arguments.  First, that the 5th Circuit was again overly deferential to UT in its assessment of whether its approach was “necessary” to achieving its compelling interest in a diverse student body.

Fisher’s second, and somewhat convoluted, argument is that UT’s pursuit of highly-qualified minority students from high-performing high schools implicitly discounts the contribution of high-performing minorities from lesser school.

Fisher is decidedly not about whether or not schools are allowed to consider race in admissions per se.  Longstanding precedent holds that the educational benefits of a diverse student body constitute a “compelling government interest,” so an appropriately tailored admissions system should be upheld.

However, UT’s admissions system is as nearly race-neutral as possible without disregarding race altogether.  Upwards of 80% of relevant admissions are completely race neutral.  For the remaining 20%, race is one of many factors in a holistic approach.  The Court may find itself asking what admissions system incorporating race could possibly pass strict scrutiny if not this one.

[Featured Image: Abigail Fischer via Democracy Now]


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Everyone should list their race as negro on their college application. Then perhaps the results will be fair to all.

Class diversity schemes (e.g. racism, sexism, etc.) are politically, socially, and financially profitable. So, yes, preemptive “affirmative action” that is not based on principle and that does denigrate individual dignity will survive.

    MattMusson in reply to n.n. | December 9, 2015 at 8:57 am

    Besides – The Majority of the Supremes have gotten to the point where they like making up new law that pushes the progressive agenda.

Affirmative action is nothing less than legalized discrimination, and those benefiting from it will forever be perceived as being unable to make it on their own merits.

Will Affirmative Action Survive?


I think that this is the opportunity that the SCOTUS takes to end affirmative action as an approved method of admissions or of any other granting of government benefit.

Michigan is already ahead of the curve on this one, in that they passed a Constitutional Amendment (the Michigan Civil Rights Initiative).

MCRI was a citizen initiative aimed at stopping discrimination based on race, color, sex, or religion in admission to colleges, jobs, and other publicly funded institutions – effectively prohibiting affirmative action by public institutions based on those factors. The Proposal’s constitutionality was challenged in federal court, but its constitutionality was ultimately upheld by the SCOTUS.

I think that the SCOTUS finally takes the opinion that racial preferences, in any form, are bad, and makes them a disfavored method of balance, unless NO other method is available (at any cost).

Cynical here. But my take is that SCOTUS will find a way to allow it. The Left still has pics of Roberts doing something naughty.

It is ridiculous to call an admission strategy racist just because it yields a certain proportion of individuals. The process has to race blind. Period.
If as a result, a fewer percentage of a certain group results, then there’s something wrong with that group’s performance.
The solution can’t be to lower the bar for that group. Lowering the bar is probably what made them low performers in the first place!
And how does that happen?
By the time a young man or woman applies to college, it is already too late. It is absurd to have kids bubbling up through the K-12 education system that never mastered the most basic skills. They graduate from High School but they don’t know how to read, how to write or how to do basic math.
I have tutored college students and 12th grade hopefuls that had difficulty with basic arithmetic, can’t add or subtract efficiently, don’t know their multiplication tables, and of course, they can’t calculate a percentage, even if their lives depended on it. They don’t belong in college. Period!
How’s that possible?
K-12 education is a big fraud. We have billions of dollars controlled by a gigantic bureaucracy, teacher unions, and big publishers. Top that with the fact that Liberal political correctness has poisoned education, and only the families really manage to make a difference.

It is time to approve vouchers across the United States. Let each student take their money to their school of choice. Let the best schools research, innovate and compete. People are not stupid, and we will make sure to put our kids in the schools that better prepare them for college or life. Stop unions and big publishers from taking our money in exchange for politically correct, common core crap.
We will not need affirmative action then.

The only way in which we can indeed be a color blind society is to in fact BE COLOR BLIND. Race has absolutely NO place in deciding who can and cannot go to college, any other conclusion is a violation of the 14th amendment.

It is obvious that the Top Ten Percent Law was intended to be de facto affirmative action which admits unqualified minorities who happen to be poor (versus middle and upper class) and who are largely unprepared to matriculate and graduate.

Hence, it is also obvious that the University then uses overt affirmative action to favor and admit unqualified minorities who are middle and upper class – in an attempt to increase student graduation rates that are required by student loan authorities (among other interested parties).