Supreme Court orders further review of UT race case

Updated June 24, 2013

The question before the U.S. Supreme Court was straightforward: Do previous court decisions permit the University of Texas to consider a student’s race in undergraduate admissions?

The high court, in a 7-1 ruling Monday, sidestepped that question and sent the case back to a lower court with a new question: Is affirmative action really necessary, or are there race-neutral means of achieving a diverse student body?

It could be months, perhaps more than a year, before the constitutionality of UT’s consideration of race and ethnicity is settled. Nevertheless, both the university and the woman who challenged its program claimed victory — though neither side got the decision it sought.

UT had asked the high court to uphold its affirmative action program, and the plaintiff had asked that it be struck down. The program remains in place for now, but its future is uncertain and the court’s ruling would appear to put all colleges and universities on notice that racial and ethnic preferences must be thoroughly justified.

“It’s a kind of split-the-baby solution to the problem,” said Steven Schwinn, an associate professor at the John Marshall Law School in Chicago. “It leaves in place the theory of race-based affirmative action in higher education, but it requires a very strong showing that the program is necessary to achieve the university’s interest.”

The decision in Fisher v. University of Texas sends the case back to the 5th U.S. Circuit Court of Appeals for what Justice Anthony Kennedy, who wrote the majority opinion, called a “searching examination” of whether the university’s racial and ethnic considerations are necessary to obtain the educational benefits of diversity. In a dissenting opinion, Justice Ruth Bader Ginsburg argued that the appeals court had already done that in its ruling that upheld UT’s program.

Only eight of the nine justices participated in the case because Elena Kagan recused herself, having worked on it when she was a lawyer for the Obama administration, which sided with the university.

The case dates to 2008, when two white women, Abigail Fisher and Rachel Michalewicz, sued UT after their applications for admission were rejected. Michalewicz eventually withdrew from the case.

Fisher, who had a 3.59 grade point average and an SAT score of 1180 out of 1600, did not qualify for admission under a state law that guaranteed a slot at any public university to students ranking in the top 10 percent of a Texas high school based on GPA. Nor was she admitted to the Austin flagship with the smaller pool of students who filled the remaining slots, for which race and ethnicity were considered along with numerous other factors, such as family circumstances, leadership qualities and special talents.

Fisher graduated from Louisiana State University last year and now works as a financial analyst in Austin.

The ruling is the high court’s first major statement on affirmative action in college admissions since 2003, when a 5-4 decision upheld racial and ethnic preferences at the University of Michigan.

Civil rights groups and UT President Bill Powers expressed confidence that the university’s limited use of race will withstand the “strict scrutiny” demanded by the Supreme Court, asserting that the program was crafted to comply with standards set forth in the Michigan case.

“We think the record supports our case under strict scrutiny,” Powers said. “That’s the way we designed our program and litigated the case. (Monday’s) ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies.”

Edward Blum, a UT graduate who directs the nonprofit Project on Fair Representation, which helped underwrite Fisher’s legal expenses, predicted that the 5th Circuit would strike down UT’s program and that other colleges and universities would see their affirmative action programs challenged in court.

“This opinion establishes new and exceptionally high hurdles for universities and colleges to overcome if they intend to continue using race preferences,” Blum said.

Ada Meloy, general counsel for the American Council on Education, said she thinks UT can clear the hurdles, but she’s not sure about every other college and university that takes race into account. “Every school that uses race should be examining how they are using it and what backup they have to show that it is narrowly tailored and necessary to achieve the educational benefits of diversity,” she said.

The top 10 percent law is race-neutral in its application but hardly so in its intent. Some high schools in Texas have a heavy concentration of black or Hispanic students, a fact that lawmakers took note of when they enacted the law in 1997.

Legislators tweaked the measure in 2009 to allow UT to impose stricter standards, and students graduating from high school next year will need to rank in the top 7 percent to gain automatic admission.

Under the law, at least 75 percent of UT’s enrollment capacity for entering students from Texas is reserved for applicants who qualify solely on the basis of class rank. The law further specifies that at least 90 percent of the university’s freshmen must be from Texas.

Anywhere from 23 percent to 33 percent of the freshman class in recent years has been filled by students who do not qualify for automatic admission. Such applicants undergo a review in which race is “a factor of a factor of a factor of a factor,” as U.S. District Judge Sam Sparks of Austin put it when he upheld UT’s program in 2009.

UT’s biggest diversity challenge has been black enrollment, which has hovered in the range of 4 to 5 percent for the undergraduate student body since 1995.