Eight months after they heard arguments in Fisher v. University of Texas, the justices on the U.S. Supreme Court finally issued a ruling Monday in the affirmative action case. The decision was anticlimactic, given the interest in the closely watched case. There was no broad judgment. Instead, the justices decided, 7-1, to send Fisher back to a lower federal court for further review.
The court did not decide whether UT’s admissions program is constitutional, and it reaffirmed the support for diversity it expressed in Grutter v. Bollinger, a 2003 Michigan case. But the court also narrowed considerably the standards by which Grutter can be met.
Justice Anthony Kennedy, writing for the majority, said racial preferences in college admissions are constitutional if “no workable race-neutral alternatives would produce the educational benefits of diversity.” So what the Supreme Court wants the 5th U.S. Circuit Court of Appeals to consider is whether UT has met that narrow standard.
UT says it follows the court’s reasoning in Grutter and that it’s necessary to consider race to achieve diversity in some programs or majors where diversity is lacking. Justice Ruth Bader Ginsburg was the lone dissenter in Fisher and argued that UT already had shown it met the court’s standard for using racial preferences.
(Justice Elena Kagan had recused herself from the case, hence the ruling by eight justices rather than the usual nine.)
Abigail Fisher, the 23-year-old plaintiff in the case, told American-Statesman reporter Ralph Haurwitz on Monday that she’s “grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.” Her view of the court’s incremental ruling might be right, but it’s also can be said that Edward Blum, a 1973 UT graduate whose Project on Fair Representation sponsored Fisher’s lawsuit (Blum’s group is also behind the Alabama case challenging the Voting Rights Act; a decision in that case could come Tuesday), did not find in Fisher the symbol of reverse discrimination he thought he had found.
That’s no surprise. It always has been hard to see how her race cost Fisher admission to UT. Hers was a case the Supreme Court never should have accepted, and the court’s decision to send the case back to the lower court acknowledges that assessment to some degree.
Fisher did not graduate in the top 10 percent of her Sugar Land high school class and thus did not earn automatic admission to UT under the school’s 10 percent rule. Instead she was one of an estimated 16,000 applicants competing for about 1,275 slots open to students who graduated outside the top 10 percent.
To decide which of the students competing for the available spots to admit, UT considered an applicant’s high school grades and standardized test scores. Fisher’s high school GPA was 3.59, according to court records, and her combined SAT math and verbal scores were a less-than-stellar 1180 out of 1600. UT also considered an applicant’s extracurricular activities, work experience, socioeconomic status and, yes, race, in limited circumstances.
Fisher’s case presumes that UT made way for a minority student who did not deserve to be admitted more than she deserved to be admitted, but the record points to UT denying Fisher entry because of her academic record, not her race. As we’ve noted in previous editorials, and as Haurwitz, ProPublica’s Nikole Hannah-Jones and others have reported, court documents show that one black and four Hispanic applicants with scores lower than Fisher’s were allowed into a provisional admission program, but so, too, were 42 white students with scores equal to or lower than Fisher’s. Meanwhile, 168 black and Hispanic applicants who had scores equal to or higher than Fisher’s were denied admission into the program.
Last, the university offered Fisher the chance to transfer to Austin her sophomore year if she attended another UT school her freshman year, earned 30 credits and maintained a 3.2 GPA. She turned down the offer, enrolling at Louisiana State University instead. She graduated from LSU in May 2012 and now works in Austin as a financial analyst.
Fisher’s racial discrimination suit against UT initially was joined by Rachel Michalewicz, a 2008 graduate of Hays High School. Countless students find themselves rejected by their first-choice schools. Rejection is hard and disappointing, but success awaits elsewhere. Fisher successfully attended LSU. Michalewicz attends law school at Southern Methodist University. Michalewicz dropped her case against UT and moved on. Fisher, with no meaningful remedy available to her now that she’s graduated, should have done the same.
Next term, the Supreme Court has agreed to review Schuette v. Coalition to Defend Affirmative Action, a Michigan case involving a statewide referendum that allows universities to eliminate the use of race in college admissions. Fisher’s case lingers, but if a sweeping ruling against affirmative action is to come, it will come from Schuette.