- Ralph K.M. Haurwitz American-Statesman Staff
The U.S. Supreme Court on Thursday narrowly upheld the race-conscious admissions program at the University of Texas. The 4-3 decision was the high court’s second ruling in the case and a surprising victory for supporters of affirmative action.
Justice Anthony Kennedy, who wrote the majority opinion, was the swing vote, siding with three members of the court’s liberal wing — Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. This was the first time Kennedy has voted to support an affirmative action program.
At issue in Fisher v. University of Texas at Austin was the constitutionality of UT’s consideration of race and ethnicity in deciding which applicants to admit to its undergraduate ranks. The court ruled that the university’s use of those factors, along with grades, essays, leadership qualities and other matters, passes muster under the Constitution’s equal protection clause.
But the opinion also sounded a cautionary note.
“The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement,” Kennedy wrote. “It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”
In a 51-page dissent, Justice Samuel Alito concluded that the majority opinion was “remarkable — and remarkably wrong.” He was joined by Chief Justice John Roberts and Justice Clarence Thomas.
Justice Elena Kagan took no part in the case, presumably because she worked on it for the Obama administration — which supported UT — before she was appointed to the bench. Justice Antonin Scalia died in February during a hunting trip at a West Texas ranch, and his seat remains vacant.
The ruling ends a legal challenge that had hung over UT’s admissions program for eight years.
Thrilled v. disappointed
“I was thrilled and very gratified that the court recognized our admissions policy as constitutional,” UT President Gregory L. Fenves told the American-Statesman in a phone interview from Singapore, where he was meeting with alumni as part of a swing through Asia. “There were some tough questions from the justices at oral arguments in December, as there should be. I sleep well at night, but I had been concerned about it.”
Abigail Fisher, a white woman who had challenged UT’s rejection of her application for admission, said in a statement: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”
About three-fourths of freshmen get into UT under a state law that guarantees acceptance solely on the basis of Texas high school class rank. The cutoff for automatic admission has ranged from the top 10 percent to the top 7 percent depending on the university’s estimates of what it will take to fill that portion of the class.
The remaining applicants, including those from outside Texas, are considered under a so-called holistic review that takes race and ethnicity into account along with numerous other factors.
The case, which focused on the holistic portion of the admissions program, was brought in 2008 by Fisher, whose class rank at a high school in Sugar Land didn’t qualify her for automatic admission. Denied admission after the holistic review, she contended that UT’s consideration of race and ethnicity violated the equal protection clause.
U.S. District Judge Sam Sparks of Austin upheld UT’s program in 2009, concluding that it complied with the Supreme Court’s 2003 University of Michigan ruling, which held that race-conscious admissions must be “narrowly tailored” after “good-faith consideration” of race-neutral alternatives. The 5th U.S. Circuit Court of Appeals agreed in 2011 that UT’s approach was acceptable.
In its first opinion in the Fisher case, a 7-1 decision written by Kennedy in 2013, the Supreme Court set aside the 5th Circuit’s ruling and told that court to conduct a “searching examination” of whether racial and ethnic considerations are really necessary to obtain the educational benefits of diversity. The high court essentially punted in that ruling.
The 5th Circuit concluded in 2014, as it had previously, that UT’s program was legal. The Supreme Court’s decision to take the case a second time, an unusual move, seemed to signal a growing willingness among its conservative members to reject UT’s approach.
The high court’s second round of oral arguments, in December of last year, was punctuated by Scalia’s controversial suggestion that low enrollment rates for blacks at UT might be a good thing because, he argued, many blacks struggle to keep up with faster-paced classes at such top-tier schools. Scalia almost certainly would have voted against UT’s program, yielding a 4-4 result that would have left the 5th Circuit’s ruling in place but without establishing a precedent.
UT’s use of race is so subtle that it hasn’t moved the needle much when it comes to the university’s most persistent challenge in student body diversity: boosting African-American enrollment. On average, black students have constituted about 4.3 percent of the freshman class since 1995, an American-Statesman analysis of university records shows.
That minimal impact figured in Kennedy’s decision.
“It is not a failure of narrow tailoring for the impact of racial consideration to be minor,” Kennedy wrote. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”
Fisher enrolled at Louisiana State University after her application was rejected by UT, graduating in 2012. She subsequently got a job as a financial analyst in Austin.
Her lawsuit was underwritten by the Project on Fair Representation, a nonprofit group whose director, Edward Blum, lined up Fisher as a plaintiff and funding for the litigation. Blum, a UT graduate, also organized lawsuits filed in 2014 against Harvard University and the University of North Carolina at Chapel Hill that seek “the outright prohibition of racial preferences in university admissions — period.” Those cases have been on hold pending the Supreme Court’s decision in the Fisher case.