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Fall 2013

HGSE Reacts to Supreme Court's "Fisher" Ruling

The Supreme Court issued a long-awaited decision yesterday in Fisher v. University of Texas at Austin, a seven-to-one ruling (Justice Elena Kagan recused herself because she had worked on the case as U.S. Solicitor General)  that sends the affirmative action case back to a lower court for further review. The narrow decision by the Supreme Court was not surprising for many educators considering the complexity of affirmative action cases, but it still raises questions about how this may impact admissions.

“In some respects, it is more important in terms of what the Court did not do as compared to what the Court did,” says incoming HGSE Dean James Ryan, noting that the ruling did not outlaw race-based affirmative action nor reject goals of diversity in admissions or set limits on how to achieve it. “What the Court required in this decision, and all that it required, is that university officials give careful consideration to the means used to achieve the goal of diversity and that the explicit consideration of race be used only to the extent necessary to achieve diversity.”

In Fisher v. University of Texas at Austin, Abigail Fisher, a white woman, claimed she was denied admission based on race as part of the university’s “holistic review,” which factors race for 25 percent of its incoming freshman class. Fisher contended that without the consideration of race she would have been accepted to the university.

The court’s decision, written by Justice Anthony Kennedy, contended that the Fifth Circuit reviewed the Texas admissions policy under the wrong standard. “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice,” Kennedy wrote.

“This is not unusual,” says doctoral candidate Matthew Shaw, a doctoral candidate who, with Phil Lee, Ed.M.'12, Ed.D.’13, filed an amicus curiae brief in favor of the university last August. “These are some of the most nerve-wracking cases because they have great implications not only for education but also for the democratic character of our country.”

While few educators were shocked by the ruling, some did find it interesting that the Supreme Court heard the case at all considering Grutter v. Bollinger, the 2003 landmark case where the Supreme Court rejected racial quotas but supported the consideration of race as part of a “holistic” admissions review.

“It was perplexing that the Supreme Court took the case because the University of Texas admission policy seemed in line with what the court had ruled was acceptable in the Michigan case,” says Professor Julie Reuben, pointing out that in Grutter v. Bollinger the Supreme Court supported the University of Michigan Law School’s affirmative action admissions policy.

“People wondered why so soon after the Michigan case [the Court] would hear this case, which didn’t really present a particularly atypical admission process or controversial admissions process,” Reuben says, sharing speculation that the Court took the Fisher case to overturn Michigan. “Clearly, the court didn’t end up doing that in their decision. Instead they took a relatively benign action of sending it back to the lower court.”

Richard Reddick, Ed.M.’98, Ed.D.’07, an assistant professor at the University of Texas at Austin where he teaches courses on higher education, agrees that it was unique for the case to be heard. “That is an interesting conversation in itself because it was not a particularly strong case,” Reddick says. “Any number of analyses have established that Fisher would not have gained admission to UT Austin even if she had been awarded all personal index points. It was not a smoking gun proving that reverse discrimination exists in college admissions.”

For now, University of Texas at Austin admission policies will go on to a “strict standard scrutiny” review within the Fifth District Court, based in New Orleans. While universities and colleges around the country can temporarily breathe a sigh of relief seeing as the Supreme Court made no sweeping policy decisions, the ruling does allow for further scrutiny of such cases in the future.

“It is definitely leaving the door open for cases like this because the court made a narrow decision,” Shaw says. “Any university that has an affirmative action policy could be subject to a similar lawsuit regarding whether it’s meeting the compelling standards for governmental use of race in education policy. But who knows whether someone will bring a case or where. Only time will tell.”

Ultimately, Reddick says the case is about more than affirmative action but academic freedom as the Supreme Court ruling will challenge academic freedom of universities.

Assistant Professor Natasha Warikoo, who recently wrote an L.A. Times op-ed about affirmative action, points out that although race-based affirmative action is still legal, universities can’t rely solely on academic freedom to justify admissions policies. “Instead, they must be prepared to demonstrate in court the utility of their policies, and that they don’t rely too much on race in their decision-making,” she says.

Perhaps only one thing remains certain: issues surrounding race-conscious admissions will likely continue.

“The ruling sends the message to state universities that they need to really think about designing their race-conscious admissions policies,” says Lee. “Since the educational benefits of diversity have been once again confirmed as a compelling government interest, the relevant question becomes how universities can narrowly tailor their policies to achieve this end.”

Lee argues a need for more “contextual diversity” rather than “checkbox diversity.” “In other words, universities should be asking in what ways an applicant's self-identification actually informs his or her perspective,” Lee says.

For more, watch a recent Askwith Forum centered on the case.