High Court Approves Affirmative Action For Higher Education
Posted on July 1st, 2016
by Dr. Kathleen Conn
On June 23, 2016, the U.S. Supreme Court, for the second time in Fisher v. University of Texas at Austin, affirmed the constitutionality of the University of Texas policy which considers the race of applicants as one factor in its admissions decisions. Justice Kennedy, writing for the majority, adopted an approach modeled on the 2003 High Court decision in Grutter v. Bollinger, which sanctioned the limited use of race as one factor in a holistic admissions review process in order to achieve diversity on campus.
Although both the Grutter and Fisher admissions policies were designed to achieve racial diversity, the Texas admissions process differs from the Grutter approach in Michigan. The Texas legislature in 1998 implemented what it called the “Top Ten Percent Law,” by which students graduating from Texas high schools in the top ten percent of their classes were automatically offered admission to the University. This provision filled approximately 75 percent of the freshmen class seats each year, with the remaining 25 percent filled by an admissions policy that did not consider race of the applicant.
However, when this practice did not achieve the racial diversity that the University felt was necessary to provide the educational benefits of a diverse student body, the Board of regents approved an admissions policy in which race was considered one factor in the Personal Achievement Score (PAS) of each applicant in the remaining 25 percent of admitted students. The PAS includes rating of students’ essays, leadership and personal achievements in school and community, as well as socioeconomic background and race.
Abigail Fisher applied for admission to the university’s freshman class in 2008. She was not in the top ten percent of her Texas high school graduating class, and she was not admitted to the University. She sued in district court, alleging that the consideration of race in the PAS discriminated against her because she is Caucasian. The district court upheld the University’s admission policy as constitutional, and upon appeal, the Fifth Circuit affirmed.
The Supreme Court granted certiorari and in 2013 in Fisher I, ruled that the Fifth Circuit had applied the wrong standard of review, applying a test of good faith rather than the standard of strict scrutiny required where a protected category such as race is involved. The Court vacated the Fifth Circuit decision and sent the case back to the Fifth Circuit to apply the appropriate standard of review.
For a second time the Fifth Circuit ruled that the limited consideration of race was constitutional.
The Supreme Court granted certiorari for the second time in 2015, and in Fisher II, now affirmed the Fifth Circuit decision that the consideration of race, as considered part of a holistic system of review, was justified, even after strict scrutiny review, to achieve diversity on campus.
The strict scrutiny review process required that the University “demonstrate with clarity” that its purpose in achieving diversity was both constitutionally permissible and substantial, and that consideration of race was necessary to achieve its purpose. The Court also noted that in deciding whether the issue of diversity on campus was substantial, that courts should defer to the educational institution’s stated goal of providing educational opportunities to members of all racial groups.
Fisher II is not unique in approving the consideration of race as educationally necessary and appropriate. On the heels of Brown v. Board of Education and the attempt of the judiciary to end legally sanctioned segregation in K-12 schools, in 1971 in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court went so far as to approve the limited use of racial quotas, “mathematical ratios,” as a starting point in desegregating a school system that notoriously failed to desegregate its schools.
Abigail Fisher, however, was not so much disadvantaged by the University of Texas’consideration of race as one factor in the PAS as by her failure to gain admission to one of the 75 percent of freshman seats that would have been open to her if she had graduated in the top ten percent of her high school class. Ms. Fisher did not challenge the Top Ten Percent rule.
Enrolling a diverse student body, the Court affirmed, “promotes cross-racial understanding, helps to breakdown racial stereotypes, and enables students to better understand persons of different races.”
Diversity also “better prepares students for an increasingly diverse workforce and society” and cultivates a set of leaders with legitimacy in the eyes of the citizenry.
The Court approved the yearlong study in which the University had engaged that demonstrated that without the consideration of race in the PAS, the goal of racial diversity could never be reached, and commended the “narrow tailoring” of its current admissions policy. However, Justices Thomas and Alito dissented, with Chief Justice Roberts and Justice Thomas joining in the Alito dissent. The dissenters argued that the University had not described with sufficient clarity the need for racial diversity, and criticized the preferences for African American and Hispanic students over Asian students. Justice Kagan, who had been U.S. Solicitor General and involved in the case in that capacity since her 2010 appointment to the Court, had recused herself during all deliberations in the case.
With the dissents longer than the majority opinion, one wonders whether Fisher II has really resolved the issue. The Court has not yet explained the concept of “critical mass,” nor has its well-intentioned statements of its goals for achieving racial diversity on campus satisfied its critics. Is there a Fisher III in the future?
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.
High Court Approves Affirmative Action For Higher Education
Posted on July 1st, 2016
by Dr. Kathleen Conn
On June 23, 2016, the U.S. Supreme Court, for the second time in Fisher v. University of Texas at Austin, affirmed the constitutionality of the University of Texas policy which considers the race of applicants as one factor in its admissions decisions. Justice Kennedy, writing for the majority, adopted an approach modeled on the 2003 High Court decision in Grutter v. Bollinger, which sanctioned the limited use of race as one factor in a holistic admissions review process in order to achieve diversity on campus.
Although both the Grutter and Fisher admissions policies were designed to achieve racial diversity, the Texas admissions process differs from the Grutter approach in Michigan. The Texas legislature in 1998 implemented what it called the “Top Ten Percent Law,” by which students graduating from Texas high schools in the top ten percent of their classes were automatically offered admission to the University. This provision filled approximately 75 percent of the freshmen class seats each year, with the remaining 25 percent filled by an admissions policy that did not consider race of the applicant.
However, when this practice did not achieve the racial diversity that the University felt was necessary to provide the educational benefits of a diverse student body, the Board of regents approved an admissions policy in which race was considered one factor in the Personal Achievement Score (PAS) of each applicant in the remaining 25 percent of admitted students. The PAS includes rating of students’ essays, leadership and personal achievements in school and community, as well as socioeconomic background and race.
Abigail Fisher applied for admission to the university’s freshman class in 2008. She was not in the top ten percent of her Texas high school graduating class, and she was not admitted to the University. She sued in district court, alleging that the consideration of race in the PAS discriminated against her because she is Caucasian. The district court upheld the University’s admission policy as constitutional, and upon appeal, the Fifth Circuit affirmed.
The Supreme Court granted certiorari and in 2013 in Fisher I, ruled that the Fifth Circuit had applied the wrong standard of review, applying a test of good faith rather than the standard of strict scrutiny required where a protected category such as race is involved. The Court vacated the Fifth Circuit decision and sent the case back to the Fifth Circuit to apply the appropriate standard of review.
For a second time the Fifth Circuit ruled that the limited consideration of race was constitutional.
The Supreme Court granted certiorari for the second time in 2015, and in Fisher II, now affirmed the Fifth Circuit decision that the consideration of race, as considered part of a holistic system of review, was justified, even after strict scrutiny review, to achieve diversity on campus.
The strict scrutiny review process required that the University “demonstrate with clarity” that its purpose in achieving diversity was both constitutionally permissible and substantial, and that consideration of race was necessary to achieve its purpose. The Court also noted that in deciding whether the issue of diversity on campus was substantial, that courts should defer to the educational institution’s stated goal of providing educational opportunities to members of all racial groups.
Fisher II is not unique in approving the consideration of race as educationally necessary and appropriate. On the heels of Brown v. Board of Education and the attempt of the judiciary to end legally sanctioned segregation in K-12 schools, in 1971 in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court went so far as to approve the limited use of racial quotas, “mathematical ratios,” as a starting point in desegregating a school system that notoriously failed to desegregate its schools.
Abigail Fisher, however, was not so much disadvantaged by the University of Texas’ consideration of race as one factor in the PAS as by her failure to gain admission to one of the 75 percent of freshman seats that would have been open to her if she had graduated in the top ten percent of her high school class. Ms. Fisher did not challenge the Top Ten Percent rule.
Enrolling a diverse student body, the Court affirmed, “promotes cross-racial understanding, helps to breakdown racial stereotypes, and enables students to better understand persons of different races.”
Diversity also “better prepares students for an increasingly diverse workforce and society” and cultivates a set of leaders with legitimacy in the eyes of the citizenry.
The Court approved the yearlong study in which the University had engaged that demonstrated that without the consideration of race in the PAS, the goal of racial diversity could never be reached, and commended the “narrow tailoring” of its current admissions policy. However, Justices Thomas and Alito dissented, with Chief Justice Roberts and Justice Thomas joining in the Alito dissent. The dissenters argued that the University had not described with sufficient clarity the need for racial diversity, and criticized the preferences for African American and Hispanic students over Asian students. Justice Kagan, who had been U.S. Solicitor General and involved in the case in that capacity since her 2010 appointment to the Court, had recused herself during all deliberations in the case.
With the dissents longer than the majority opinion, one wonders whether Fisher II has really resolved the issue. The Court has not yet explained the concept of “critical mass,” nor has its well-intentioned statements of its goals for achieving racial diversity on campus satisfied its critics. Is there a Fisher III in the future?
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.